From Household Words.
TIME'S SPONGE.

the Crown, this article is wholly founded), suggests also the case of a person in a respectTHERE are a few curiosities of our existing able station of life, who lived during the last criminal law that wait to be, as Sir Matthew century in Holborn Court, Gray's Inn, and Hale would say, laid flat. A good many was for a long time in the habit of breaking have been laid flat since his time; for that open and robbing chambers in the Inns of famous Judge and Historian of the Pleas Court, without any suspicion attaching to of the Crown lived in the Stuart days, him. It is remarkable that, during this and died in the year 1676. A great many, period, he always went to Abingdon's coffeehe tells us, had been laid flat when he house, in Holborn, on an execution-day, to lived; for instance, it had ceased to be see from thence the prisoners pass by in their felony and death to sell a horse to a Scotch-carts to Tyburn. At no other time did he frequent that coffee-house.

man.

Jack Cade, if Shakspeare knew his mind, The result of ordering men to do what meant that when he was king it should be they will not, or cannot do, is when action of felony to drink small beer; and that, we some kind is enforced, commonly absurd. may say, looking at some actual cases, would The law used to compel jurymen, if they have been no great sharpening of law. We acquitted any accused man of murder, not have now not more executions in the country merely to acquit him, but to name the guilty every year than used to be provided often in person. Whenever they could not do this to a single morning only. Seventy or eighty the satisfaction of their consciences, the juries years ago, there were never less than a dozen declared that the real murderer was John-aculprits hung in a row after every Old Bai- Noakes. That person of whom we speak so ley sessions; and Townsend, the Bow Street often as Jack Noakes in friendly tones, has runner, said that he remembered a sessions been declared guilty by jury after jury of a held at that seat of justice in 1783, when series of horrible atrocities. Away with Serjeant Adair was Recorder, after which him, then! Let him be laid flat! When forty were hanged at two executions. In larcenies were grand and petty, and a few earlier time, the lightest heed was taken of shillings more or less in the value of a stolen the punishment of death. It was no rare article made the question one of life or death and solemn sentence, but staple judicial rou-to the thief; juries used, in the most open tine, that might be enlivened with a joke when possible, to color its monotony. Thus, Lord Bacon tells of his father Sir Nicholas, that when appointed a Judge on the northern circuit," He was by one of the malefactors mightily importuned for to save his life; which, when nothing he had said did avail, he at length desired his mercy on account of kindred. Prithee,' said my Lord Judge, how came that in?'- Why, if it please you, my lord, your name is Bacon, and mine is Hog; and in all ages Hog and Bacon have been so near kindred, that they are not to be separated.'-' Ay, but,' replied Judge Bacon, you and I cannot be kindred except you be hanged; for Hog is not Bacon until it be well hanged.'

6

Of course crime was not lessened by extreme severity. As for the punishment of death, Mr. Harmer, a great gaol solicitor, said, in his evidence before the Criminal Law Commission, "In the course of my experience, I have found that the punishment of death has no terror on a common thief. I have very often heard thieves express their great dislike of being sent to the House of Correction, or the hulks, but I never heard one say he was afraid of being hanged." Mr. Amos, Downing Professor of the Laws at Cambridge (upon whose recent very interesting sketch, Ruins of Time Exemplified in Sir Matthew Hale's History of the Pleas of DCXXXIV. LIVING AGE. VOL. XIV. 11

way, to deal in what were called by Blackstone pious perjuries. It was a common thing for them to find that five-pound-notes, or ten-pound-notes of the Bank of England, were articles of the value of twelve pence, four shillings and sixpence, or twenty-nine shillings, as the humanity of the case required. In fact, the result of the too great stringency of law was a great laxity of practice, illustrated in the happiest way by the bleachers, who petitioned parliament to PRO TECT them by withdrawing the capital punishment of stealing from bleaching-grounds.

Numerous, then, as the executions used to be, they did not respect a tithe or hundredth part of the amount of what was pronounced capital crime; nor the number of persons who were sentenced to death without the smallest intention of hanging them. We never were so savage as our laws have sometimes been. A short time before the abolition of capital punishment for stealing to the amount of forty shillings in a dwellinghouse, Lord Kenyon sentenced a young woman to death for that offence; whereupon. she fainted, and the judge in great agitation, exclaimed, "I don't mean to hang you! Will nobody tell her, I don't mean to hang her?" Of the pious perjuries, who does not feel that the chief crime was in the law, not in the administrator, and that the law must bear the heaviest weight of Sir Samuel

Romilly's objection to the "looking upon suggestive way, questions of homicide and the evasion of our criminal laws with so burglary. A servant who had attempted to much favor, as to regard the profanation of murder his master by giving him fifteen the name of God in the very act of admin- wounds with a hatchet, but without killing istering justice to men, as that which is in him, was convicted and executed; not for some degree acceptable to the Almighty, and attempted assassination, but for constructive as partaking of the nature of a religious burglary, because, in order to enter his duty!" master's chamber, he had been obliged to lift up the latch of a door.

There used to be- -as we suppose, there are stilla great many delicacies in the laws having reference to homicide and burglary; but in Sir Matthew Hale's time, the knotty question of what was passable Latin for burglarious and burglar in the framing of indictments, was THE delicacy of the season. More offenders escaped by the writing of burgariter, or burgenter, for burglariter, than by proof of innocence; but, although these errors were common and fatal flaws in an indictment, it was ruled that burgulariter was good Latin enough to serve the purposes of law.

It has been argued, and we are not sure whether it ever was completely settled, whether it was burglary to break a cupboard open; and, of course, when the punishment of felony was death, such a case as the following was serious: Some servants in husbandry, left in charge of their master's team, entered his granary by means of a false key, and took out of it two bushels of beans, which they gave to his horses. Out of eleven judges. three were of opinion that this was no felony; eight ruled for a conviction, some of the eight formally alleging that the robbery by the accused men was for their own gain, because by better feeding of the horses, their own labor would be lessened.

purpose of ripping it open, the asportavit was not complete, because every part of the package was not shown to have been moved. The central point of it might be exactly where it was before. This was understood by the poet who declared the asportavit to be complete as against him when "the Knave of Hearts, he stole some tarts, and took them quite away."

Dipping very much at random into the amusing law sketch of Professor Amos, we fall upon some of the subtleties of homicide. Accidental homicide, if it arose out of the The idle subtleties that have been spent by doing of a lawful act was held excusable; if criminal lawyers upon the subject of theft, it arose out of a trespass, not a larceny, was could scarcely be seen to more advantage manslaughter; but if it arose out of a larceny, than in the consideration of that element in was murder. Thus Mr. Eden put the case thieving, which consists in carrying the stolen a hundred years ago: "A man, shooting at thing away; or, as the books called it, the a bird, and not using proper and ordinary asportavit. Thus it was held that if a pricaution to prevent danger, unfortunately soner removed a package from the head to the happeneth to kill his neighbor. The guilt tail of a waggon, the asportavit was comof this man, in the eye of our law, and, con-plete; but if he moved it only by lifting it up sequently, the proportion of his punishment, where it lay, and standing it on end, for the will depend, partly on the nature, shape, and size of the bird; and partly on the intention of the man with respect to the bird; but will have no connection whatever with the act of homicide. If the bird chanceth in evidence to prove a wild pigeon, no man's property, it will be excusable homicide; if a tame fowl, and shot at for the amusement or improvement of the marksman, it will be felonious and manslaughter, because an unlawful trespass on the property of another; lastly, if the bird were private property, and intended to be stolen, which must be collected from the circumstances, it will be murder." Hobbes, the philosopher, living in Hale's time, expressed the law in this form: "If a boy be robbing an apple-tree, and by some chance fall therefrom, and break the neck of a man standing underneath, the crime consists in a trespass, to the damage, perhaps, of sixpence. Trespass is an offence, but the falling is none, and it was not by the trespass, but by the falling, that the man was slain; yet Coke would have him hanged for it, as if he had fallen of malico prepense.

There was a case which combined, in a

There are one or two legal terms of which the meaning is perhaps not generally known. We need remind no one that lunacy is derived from an idea that madness is connected with the moon; but many may not be aware that felony is derived from an idea that felons are prompted by excess of gall. Felonies were crimes committed felleo animo, with a mind affected by the gall: and Hale was of opinion that the reason why a lunatic cannot be guilty of a crime, is a want of gall. Then again, maiming is not any kind of wounding, but such wounding as lessens a man's power of battleing in his own defence. Therefore, it was ruled that to knock out a man's front tooth is to maim him; but that he is not maimed by the knocking out of a grinder: because

with a front tooth he can bite and tear anticipating in a riot about Catholic Emancienemy, but with a grinder he can only masti-pation. It might be said, however, that a cate his food.

London street-boy is mature at ten. Account Lunatics and idiots, it was said, could not was given to a parliamentary committee of be criminals for want of gall; yet that they one of these unhappy creatures who during can destroy life is certain." Dr. Mayo relates a career of five years had robbed to the amount that "an idiot in the hospital of Salzburg of three thousand pounds. Besides numerous appearing to be singularly insusceptible of minor punishments he had been sentenced to fear, an experiment of an appalling charac death; but, from compassion, sent to the ter, and of appalling consequences. was made Philanthropic Asylum instead of the gallows. upon him, as a means of putting his suscep- Thence he escaped, and was for another tibility to the test. It was proposed to pro- offence transported for life-all, before the duce in him the impression, that he saw a age of thirteen. dead man come to life. A person, accord- There were some niceties connected with ingly had himself laid out as a corpse and the judicial treatment of the law of Escheat, enveloped in a shroud; and the idiot was or Confiscation, which led even to a necessity ordered to watch over the dead body. The for bringing torture into common use. If idiot perceiving some motion in the corpse, prisoners liable to confiscation of their goods desired it to lie still; but the pretended corpse were mutes, that is to say refused to plead, raising itself in spite of this admonition, the there could be no attainder, and consequently idiot seized a hatchet, which, unluckily, was no escheat. For this reason, in Sir Matthew within his reach, and cut off first one of the Hale's time, it was the constant practice at feet of the unfortunate counterfeit, and then, Newgate to tie together with whipcord the unmoved by his cries, cut off his head. He two thumbs of any refractory person, and then calmly resumed his station by the real the whipcord with the aid of a parson soon corpse." One sees in such a story what is produced the desired effect. If more were meant by there being no gall or felony in required, recourse was had to the peine forte the lunatic. Here is a ghastly murder with- et dure, the more horrible form of torture. out bitterness of wrath or criminal intent. A case is on record of a member of an ancient As little was there of gall in a French child, family in Yorkshire, who, in a fit of jealousy, five years and a half old, mentioned by Vol- had killed three of his children, his youngest taire. This little boy, at Lyons, swore child being from home at nurse. Proceeding against his own mother minute evidence of to destroy the infant also, he was terrified by sundry horrible offences, ending with a mur- a storm, which awakened his remorse. der, and the particulars of throwing the dead was arrested; in order to preserve the estate body in the Rhone, all of which turned out to his surviving child, he died mute- under to be false. The child having been suborned the agonies of torture! by two children of her accusers, had very A case of a different kind is that of one nearly sent his mother to the stake- for William Dalhiot, who, a hundred, years ago, sugar-plums! was convicted at the Salisbury quarter-sesWe have an arbitrary way of fixing four-sions of petty larceny, for stealing one teen years as the age in relation to respon- penny; whereby his effects consisting of bank sibility for certain capital offences. We notes to the amount of one hundred and take that age from the East, where puberty eighty pounds and twenty guineas in money comes early, and it is not the sole trace of an were forfeited to the bishop as lord of the origin from Constantinople in many of our manor. It so happened that the bishop had statutes. The Code Napoléon is wiser. It a conscience, and gave all the money back to determines that if an accused person be under the family in this form, namely, one hundred the age of not fourteen, but-sixteen, it pounds to the felon's father, the same to his shall be inquired of by the jury whether he daughter, and the remaining twenty shillings acted with, or without discernment. In the to himself. The old claims on confiscated latter case he is acquitted; but is liable to be goods were rarely however met in this way. under due control. If, on the contrary, he Even kings were careful of the use they could be found to have acted with discernment, his make of such windfalls, and there was a punishment, it is decreed, shall be regulated great royal truth in the answer of James the in proportion to the full punishment of the First to the widow of Sir Walter Raleigh, offience, but never equal to it. Our old laws who petitioned for the restitution of Shertook little thought at all of any such distinc-borne Castle, that he mun have it for tion. In 1629, a child between the ages of but eight and nine was hanged for arson at the Abingdon assizes. As late as the year 1780, a boy of fourteen was hanged for par

He

Ker." Sylla the dictator is supposed to have been the inventor of such forms of confiscation, which in the reign of Louis the Fourth was defended by M. de Tourreil. a

distinguished lawyer, by the express declara- | Friend, you do not well to trample on a dying tion, that" You must stab the heart of the father in the bosom of the son."

As we have fallen among kings we may as well go on to make a note or two upon the old judicial view of treason, concerning which it may be said first, that there has been some confusion in the interpretation of the old word Imagine, in the declaration that it is treason, among other things, to imagine the king's death. It used to mean simply to plot, and in this sense the Psalmist is translated. "Why do the people imagine a vain thing?" In this sense Chaucer speaks of such imagining as a thing visible to the eyes:

"There saw I all the dark imagining Of felony, and all the compassing, The spoiler with the knife," &c.

man.

More mildly Shenstone, in his ballad of Jemmy Dawson, executed for the Scotch Rebellions, tells what reads like a true history of his sweetheart's following him to execution:

"And severed was that beauteous neck,

Round which her arms had fondly closed;
And mangled was that faithful breast
On which her love-sick head reposed.
And ravished was that constant heart,
She did to every heart prefer;
For though it could its king forget,
'Twas true and loyal still to her.
Amid those unrelenting flames,

She bore his constant heart to see."

These couplets on treason are more harmless than a certain treasonable couplet made by a poor schoolmaster named Collynbore, who was in the reign of Richard the Second beheaded and quartered, as the chronicler Grafton tells, "for making a small ryme." His misfortune was that the exigency of his verse compelled him to put hog when he meant boar; he could not help it for the life of him, and paid his life as penalty. Thus

"The Rat, the Cat, and Lovell our Dog Rule all England under the Hog;

in dog, the metrician could not, observing the regiment of meeter, ende the second verse in Bore, but called the Bore an Hogge."

We will speak only of high treason, not of the petit treason, which is murderous rebellion of a wife against her lord and husband; of a servant against his master, and so on; though as a memorial of the domestic suavity for which it was thought worth while to take thought specifically by our forefathers, we may mention one of Sir Matthew ran the small rhyme : Hale's statements; that if a wife throws a poker at her maid's head, which by accident lights on her husband's head and kills him, that is petit treason. This sort of offence" meaning by the Hog," says Grafton, "the was only abolished in the time of George the dreadful wild Bore which was the King's Fourth, and classed with ordinary murder. cognizance, and because the first line ended We speak only of high treason, and of the good old punishment of traitors, who were to be hanged, cut down alive, embowelled while still living, then finally be quartered. When a traitor was condemned to be hung, This sentence was only humanized in the drawn, and quartered, that sentence was time of George the Third by the exertions of commonly preceded by the order that he Sir Samuel Romilly; which were for a long should be carried on a hurdle to the place of time baffled by the protest of the crown offi- execution. This hurdle was a merciful incers, that he was breaking down "the bul-vention of the monks. The original senwarks of the constitution." May we be tence had been that the object of a royal venpardoned a few terrible lines to show the old geance should be dragged at the tail of a judicial state of things, as concerned treason horse over the stones and through the mud, in all its horror? In Sir Matthew Hale's and so brought, already bruised and bleedtime, the regicide Harrison, when the execu-ing, to his death. In this way Prince David tioner was in the act of disembowelling him, was drawn through Shrewsbury, and Walrose and gave that functionary a blow in the face. Hugh Peters, after being carried on a sledge to the scaffold, was made to sit thereon within the rails, to behold the execution of Cook, who had been attorney of the Commonwealth, and we are told that when Cook was cut down alive, and brought to be quartered, Colonel Turner ordered the sheriff's men to bring Peters near, that he might see We add only one more note from Professor it; and by-and-by the hangman came to him Amos' suggestive book, and that must be all besmeared in blood, and rubbing his about the affixing of the heads of traitors bloody hands together, he tauntingly asked, upon Temple Bar. The heads of the perCome, how do you like it? He replied, sons convicted of the Scotch Rebellion in

lace through London. Monks seem to have suggested the humane interposition of a hurdle, for in the reign of Edward the Third a judge, in condemning a criminal, is reported to have given especial order that "neither friars nor others" should dare to help the culprit with anything to rest upon in the drawing to the gallows.

PHYSIC, LAW, AND DIVINITY. "We may DANGER OF UNWISE TAXATION.-"A legispuzzle ourselves," says Sanderson, "in the pur-lator who would act prudently," says Michaelis, suit of knowledge, dive into the mysteries of all" can hardly be too tender to the consciences of arts and sciences, especially ingulph ourselves his people in the imposition of taxes: for if they deep in the studies of those three highest profes- once learn to tamper with conscience, they carry sions of Physic, Law, and Divinity; for Physic, it always farther and farther, till the moral search into the writings of Hippocrates, Galen character of the whole nation becomes corrupted and the Methodists, of Avicen and the Emperics, to a certain pitch; and then the collection of the of Paracelsus and the Chemists; for Law, wrestle taxes requires so many overseers, comptrollers, through the large bodies of both laws civil and and other officers, that not only is the freedom canon, with the vast tomes of Glosses, Reperto- of every individual, however honest, laid under ries, Responses and Commentaries thereon, and irksome restraints, but the greater part of the take in the Reports and Year-books of our Com-revenue raised, is actually exhausted in the paymon Law to boot; for Divinity, get through a ment of harpies of these descriptions instead of course of Councils, Fathers, Schoolmen, Casuists, going to the public service.". Commentaries Expositors, Controversers of all sorts and sects; on the Laws of Moses. when all is done, after much weariness to the flesh, and (in comparison hereof) little satisfaction to the mind (for the more knowledge we gain by all this travel, the more we discern our own ignorance, and thereby but increase our own sorrow), the short of all is this; and when I have said it, I have done; you shall evermore find, try it when you will,

"Temperance the best Physic,
Patience the best Law,
and

A Good Conscience the best Divinity."

CURSE OF ILL-GOTTEN WEALTH. There is such a curse goes along with an ill-gotten estate, that he that leaves such a one to his child, doth but cheat and deceive him, makes him believe he has left him wealth, but has withal put such a canker in the bowels of it, that it is sure to eat it out. Would to God it were as generally laid to heart, as it seems to be generally taken notice of! Then surely parents would not account it a reasonable motive to unjust dealing, that they may thereby provide for their children; for this is not a way of providing for them: nay, 'tis the way to spoil them of whatever they have lawfully gathered for them; the least mite of unlawful gain being of the nature of leaven, which sours the whole lump, bringing down curses upon all a man possesseth. - Whole Duty of Man.

EVIL OF RETURNING INJURIES.-To do another man a diskindness merely because he has done me one, serves to no good purpose, and to many ill ones. For it contributes nothing to the reparation of the first injury (it being impossible that the act of any wrong should be rescinded, though the permanent effect may), but instead of making up the breach of my happiness, it encreases the objects of my pity, by bringing in a new misery into the world more than was before; and occasions fresh returns of malice, one begetting another like the encirclings of disturbed water, till the evil becomes fruitful and multiplies into a long succession, a genealogy of mischiefs.- John Norris.

LOYALISTS AT THE RESTORATION. "We have had mercies indeed great and glorious," says South, "in his majesty's restoration but have those been any gainers by the deliverance, who were the greatest losers by the war? No (in a far different sense from that of the scripture), to him only that has shall be given, and he shall have more abundantly. But if a man's loyalty has stript him of his estate, his interest, or his-relations, then, like the lame man at the pool of Bethesda, every one steps in before him."