LEGAL ANTIQUITIES
A COLLECTION OF ESSAYS UPON
ANCIENT LAWS AND
CUSTOMS
BY
EDW. J. WHITE
Editor Third Edition "Tiedeman, on Real Property," Author
of "Mines and Mining Remedies," "Personal Injuries On
Railroads/' "The Law in Shakespeare," Etc.
PUBLISHED BY
THE F. H. THOMAS LAW BOOK CO.
ST. Louis, Mo.
1913
Copyright, 1913
by
EDWARD J. WHITE
H1STOK)
NIXON-JONES PRINTING Co.
ST. Louis, Mo.
TO THE MEMORY OF MY
MOTHER,
WHOSE FAITH IN HUMANITY MADE HER ALWAYS CHARITABLE
FOR THE FRAILTIES OF THE PAST AND HOPEFUL FOR
THE FUTURE; WHOSE TENDER DEVOTION, SAC-
RIFICES AND ENCOURAGEMENT ARE THE
DEAREST RECOLLECTIONS OF MY LIFE,
THESE PAGES ARE AFFECTION-
ATELY INSCRIBED.
TABLE OF CONTENTS.
CHAPTER I.
Marriage Laws and Customs.
CHAPTER II.
Witchcraft and Sorcery.
CHAPTER III.
Recall of Judges.
CHAPTER IV.
Trial by Battle.
CHAPTER V.
Trial by Ordeal.
CHAPTER VI.
Peine Forte et Dure.
CHAPTER VII.
Wager of Law.
CHAPTER VIII.
Benefit of Clergy.
CHAPTER IX.
Privilege of ^ Sanctuary.
CHAPTER X.
Ancient Punishments.
CHAPTER XI.
Wills, Quaint and Curious.
INTBODUCTION.
In this age of ours, distinguished principally for the
variety of the inventions and the fast and furious pace
at which we move ; when the motto of the Captains of
Industry, being paraphrased, is simply, that "Motion
means Money"; when the politicians vie with each
other in their attempts to cater to every passing popu-
lar fantasy and the great mass of the citizenship is too
much engrossed in the commercial life of the day, to
study or analyze the history of our institutions, but the
demand of the times is for continuous change, in keep-
ing with the moving spirit of the age, it is advisable that
we should occasionally stop and consider the lessons of
the past, lest we forget some of the valuable informa-
tion of antiquity.
There was perhaps never a time, in the history of
our country, when the general feeling of individual un-
rest has brought about such disrespect for our existing
institutions.
The development of the great body of our law, from
the brutalities of a barbarous period, with the ever
changing ideas of civilization, to meet the needs of the
people, and the higher standards obtaining, has been
gradual but certain. In so far as we have actually pro-
gressed, therefore, we should be satisfied with the pro-
gress made and should be slow to return to the customs
or remedies which a past civilization found unavailing,
lest all our progress should prove but a dim phantom
of the imagination.
(I)
2 INTRODUCTION.
A profitable lesson can oftimes be gleaned from a
study of the past and when an innovation demanded is
one that experience has proven fallacious, it is puerile
to refuse to profit by this lesson, for even "a burnt
child" will avoid the fire.
Undoubtedly much of the remedial and substantive
law of our period needs revision, to the end that sim-
plicity may be attained and the interminable delays, re-
sulting from the present practice, incidental to too
many new trials and other objectionable methods, obvi-
ated. But this revision should be cautiously made, so
as not to impair the efficiency of the great body of the
law that the wisdom of the past has demonstrated to be
thoroughly consistent with the individual and national
welfare.
The first attempt to simplify procedure in the United
States, by the adoption of the New York Code, was only
sixty-five years ago and a majority of the States
adopted such legislation since the Civil War. The com-
mon law practice was greatly improved and simplified
by this concerted action of the States and unquestion-
ably there are many things that can yet be improved
in the remedial procedure of the present day.
But the prevalent idea that an increased volume of
statute law will furnish a panacea for all existing evils,
is radically wrong. The beneficent rules of conduct,
crystallized into law, by custom, because consistent
with the needs of the people, in the evolution of civiliza-
tion, should be jealously preserved against the unscien-
tific fragmentary legislation, too often reflecting the un-
just and unequal demands of an aroused public senti-
ment, shaped by designing politicians, rather than by
INTRODUCTION. 3
the "cool examiner of the public pulse," prompted by
beneficent objects.
Legislation, of course, is the simplest way of modify-
ing or repealing law, but legislators, in our country, fre-
quently act without adequate information or legal
training and the most salutary rule of conduct, in such
hands, might be supplanted by the most unequal and un-
just law.
All that is old is not necessarily good, but just be-
cause it is old, is not a sufficient reason for discarding
it. Legislation may become as limitless as the imagina-
tion of the legislator and unless properly advised, it
would be inimical to the interests of the State or Nation.
"When legislation is advised by any considerable
number of the leaders of any political party, which
history has shown in other countries to have been pro-
ductive of the most deplorable consequences, then it is
time to leave the issues of the present long enough to
study the lessons of the past.
In conning the "Marriage Laws and Customs " of
past ages, we can, in some measure, congratulate our-
selves that our Marriage Laws are better than those of
the past centuries, yet when we consider the large class
of "Predestined Lost" ones, born as a result of dis-
eased and mismated marriages, and when we give but
a cursory examination to the divorce statistics, we can
see that we have grave need for better laws on this
most important of all subjects, the regulation of the
relation, through which the standards of citizenship are
controled.
The Witch-Craze, in Europe and America, which re-
sulted in the wholesale slaughter of innocents, through
4 INTRODUCTION.
a blind faith by the Courts, in the popular standards of
the people, whereby unprovable offenses, were permit-
ted to be established in utter disregard of the rules of
evidence, and a vacillating, dependent judiciary helped
for centuries, to perpetrate the most intolerable out-
rages against civilization, illustrates the necessity of an
absolutely independent judiciary, free from the domin-
ating influence of the frenzy of the public and a con-
stant adherence to the rules of evidence and the pro-
per legal ideals, in the adminstration of the law.
The Judicial Eecall, as we see it in ancient history,
is another of the present popular fantasies to be
avoided. Hammurabi tried this system 2,500 years be-
fore Christ 's time, when witches were convicted accord-
ing to their ability to swim a torrent and surgeons were
mutilated, by the loss of a hand, for an unsuccessful
operation. It was also tried in ancient Athens and be-
cause of some unpopular decision, the "most just
Judge M of that city, Aristides, was recalled, and some
votes were cast against him, because the voters were
simply tired of hearing him called 1 1 The Just. ' ' Aris-
totle 's evidence is to the effect that this law brought
about the most deplorable consequences, in Greece,
Persia and other antique nations, where it was in vogue.
The old Anglo-Saxon practice of preferring the charge
of "False Judgment " against the judge whose decision
was challenged, who was recalled, if this charge was
sustained, was found inimical to the interest of the
Government and since the English Judges were emanci-
pated from the narrow groove of an unskilled public
sentiment and were appointed for life, the majesty of
the law has been revered in no other country on the face
INTRODUCTION. 5
of the earth, as it has been in England. This is testi-
mony worth considering, for, judging the future by the
past, if this practice undermined the judicial institu-
tions of other countries, it would also undermine our
own judicial system and ought to be avoided. The de-
mand, by the ill-formed, for the destruction of the inde-
pendence of the Judiciary, in utter disregard of the
lessons of the past and the wisdom of our fathers,
should be considered, therefore, along with this object
lesson furnished by ancient history and by penetrating
into the records of the past centuries, it will be seen that
to adopt such a law would mean to return to the ' l Leges
Barbarorum" of the past.
In the discharge of their impartial functions, the
judges of the peoples courts, have nothing to do with
popular standards; it is with right and wrong, accord-
ing to the just and equal standards of the law that they
have to deal and it is as true to-day, as when the patri-
arch Moses, admonished the judges of ancient Israel,
that, in the prerogative of the judgment-seat, "Thou
shalt not follow a multitude to do evil; neither shalt
thou speak in a cause to decline after many, to wrest
judgment. m
The work of the judges is in private places ; they have
no favors to bestow, no rewards of office to distribute.
It is frequently the business of the charlatan to miscon-
strue and misinterpret their ablest judgments and as
the courts are the final repositories of the peoples
rights, when the public clamor is the loudest for the sac-
rifice of individual right, then the true judicial charac-
ter performs its highest office, in withstanding all as-
1 Exodus, XXIII., 2.
6 INTRODUCTION.
saults by the ill-informed, upon the ramparts of the
Temple of Justice.
With the wide-spread demand for the " judicial re-
call" we find the true modern standard, in this regard,
reflected in the recent strong language of an upright
Texas Judge, who, in the course of his opinion, ob-
served :
"I have made it the rule of my judicial life, and shall
continue to do so, while invested with the authority per-
taining to the office I hold, to decide questions as I un-
derstand them, after as careful an investigation as my
capacity affords, without reference to what public opin-
ion may be. I do and shall continue to regard the law as
superior to the ebullition of outraged feeling, when com-
munities are shocked by crime. When cases arising
under such circumstances, have reached this court, my
voice and my vote shall, in the future, as in the past,
be given for the upholding of the law, not bending it
to public sentiment. The stability of the institutions of
this government depends upon adherence to the law, as
it is written, and not on the fluctuating strenuousity of
eruptive ebullitions of popular sentiment. " 2
This course alone is consistent with the attainment of
the just idea of government, by the judicial department,
and peculiarly of this department, because the ideals of
the unskilled are not always consistent with the stand-
ards of scientific jurisprudence. A subservient judici-
ary, dependent upon the vacillating ebullitions of an
unstable public sentiment would bring about a subver-
sion of the important functions of this department of
government, just as it did when popular sentiment con-
trolled the incumbents of the judgment seat, in ancient
'Judge Davidson, of Texas, in Ex parte Martinez, 145 S. W. Rep.
959, 1023.
INTRODUCTION. 7
Babylon, in Greece and in the England of old Anglo-
Saxon days.
" Trial by Ordeal," " Trial by Battle, " the dreadful
"Peine forte et dure," and "Wager of Law," are all
instructive procedures of a past civilization, from which
important lessons can be drawn.
< < Trial by Ordeal, " " Trial by Battle " and " Wager of
Law, ' ' as institutions of a primitive people, struggling
for right, are but expressions of a misguided and abor-
tive effort to attain correct judicial ideals, by false and
inaccurate standards. Before the evolution of the race
had attained to the ideals, when tribunals for the trial of
questions of right and wrong, according to the actual
facts in each concrete case, had been established, such
issues were determined by the ability of the accused, in
criminal cases, or the appellee, in civil suits, of a certain
character to accomplish certain ordeals, requiring al-
most superhuman strength or fortitude, or to withstand,
by individual combat, the strength of the opposite party
to the issue waged. Of course, with such ideals, might
alone controled the right and by the "Wager of Law,"
the other alternative used in the quest for right, the
popularity of the principal or his ability to secure oath-
helpers, to assist him in swearing away the given crime
or debt, resolved the conclusion upon a given issue, into
a simple question of the elasticity of the consciences of
the principal and his friends, who were always able to
win their cause, after issue waged, by a sufficiently
strong and an adequate number of oaths.
On the abolition of the "Ordeal," in the thirteenth
century, when the accused, in a criminal charge, refused
to submit to a "Trial by Battle," the courts were un-
8 INTRODUCTION.
able to force a plea, without some amendment of the
procedure and adroit criminal lawyers, for some years,
availed themselves of this subterfuge, of having their
clients stand mute and refuse to plead, when their con-
viction of felony would be certain to result and the
courts found themselves helpless to avoid a condition,
which resulted in the crowding of the jails and prisons,
with prisoners, afraid to submit to the " Trial by
Battle " and refusing to plead to the indictments filed
against them. This, in time, brought about the greatest
judicial severity in the case of prisoners standing mute
and finally the practice, in all such cases, came to be to
apply a heavy weight upon the chest of the accused and
to literally " press him to death/' if he persisted in his
obstinacy. For centuries, in England, this custom con-
tinued, and thousands were "pressed to death/' for
standing mute, when arraigned upon a criminal charge.
The same practice was followed in the witch persecu-
tions in this country, in the seventeenth century and
when we consider that these abominable customs ob-
tained, until the past century, we are, indeed, to be con-
gratulated that our present procedure, with all of its
imperfections, has risen to the standard where it is able
to reject such inhuman and barbarous practices.
The "Benefit of Clergy 7 ' and "Privilege of Sanctu-
ary, ' ' illustrate the attempt of the Church to mollify, as
it were, the cruelties resulting from the harsh adminis-
tration of the criminal laws of mediaeval times, in Eng-
land, by the secular courts and had it not been for these
beneficent institutions which were frequently utilized
to protect criminals of the wors.t sort there would
have been no alleviation for the sufferings of the ac-
INTRODUCTION. 9
cused, and the large number of innocents who embraced
the plea of Clergy, or sought the sacred precincts of the
protected Sanctuary, would, along with the guilty, have
paid the penalty for living in a dark and benighted age,
unable to protect the innocent from the power of the
mighty, when accused of wrong-doing.
When we read of the "Ancient Punishments " of the
past centuries, we can but feel a satisfaction that the
struggle of our English forefathers of mediaeval times,
by herculean efforts against those in authority, adopted
such fixed principles of constitutional law, as we find
reflected in Magna Charta, and the various constitutions
of our own country, preventing "cruel and unusual
punishment. ' '
Those so fortunate as to avoid the punishments of the
past centuries, when death lurked in every charge filed
against the poor and oppressed, must have felt a sort
of consolation in being able to run the gauntlet of such
barbarities and delusions, and to die a natural death,
and this is no doubt why we find such evidence of jocu-
larity, mixed with a strain of pathos running through
the ' * Quaint and Curious Wills ' ' and testaments of an-
tiquity.
Some of the great painters of modern times, such as
the late Sir Lawrence Alma-Tadema, have depicted
scenes upon the canvas, in such manner as to make an-
tiquity to live again before modern eyes to resurrect,
as it were, the men and women of the past centuries and
to infuse new life into their bodies so that they seem
to again assume real form and being.
This comes from a close study of the subjects and a
genius, almost akin to a divine gift. No such gift can
10 INTRODUCTION.
aid the lawyer, or did in this instance, who seeks to re-
produce pen pictures of the antique proceedings of the
past, but study of the subject is of course essential to
give any tolerable idea of the obsolete laws and customs
of other days.
A keen interest in these old proceedings prompted a
somewhat painstaking study of many antique volumes,
as a basis for the presentation of the following pages,
but the duties of a quite busy professional life have pre-
vented the exhaustive investigation that would other-
wise have been given the subjects treated.
The sources of the information used in the different
essays appear in notes and references throughout the
work and it is to be hoped, if the usual modicum of in-
struction may be lacking, that some of the interest felt
by the author, in tracing the old laws and customs of
previous ages, may, in a measure, be shared, by the
reader, who is kind enough to peruse the work.
Not nearly all the learning or the law upon any one
of the subjects presented, will be found set forth in the
different paragraphs pertaining to the various subjects
introduced, but a general outline of each topic, with fre-
quent illustrations from concrete cases, will appear.
None of the many legal antiquities of the Grecian
States or the Eoman Empire, which could be so profit-
ably discussed, have been attempted, but only a few of
the antique English laws and customs that have partic-
ularly attracted the attention of the author. These sev-
eral subjects were all given cursory examinations in the
preparation of the data for "Law in Shakespeare" and
the superficial investigation in connection with that
work, led to the more minute treatment herein. This is
INTRODUCTION. 1 1
the apology for the undertaking and the engrossment
of professional duties is the excuse for the limited
scope of the treatment accorded each subject.
With the era now existing, these old issues and cus-
toms are dead and buried out of sight and we would not
be mad enough to revive them, if we could. They
played no unimportant part, however, in the pathetic
drama of the evolution of the race and we ought to
erect monuments to their memory, as it were, and oc-
casionally wander back to scatter flowers upon the mon-
umental shaft, without deserting the live issues and
duties at present confronting us.
When we contemplate the lessons of the past, as pre-
sented in these "Legal Antiquities," we can but realize
the plain truth, expressed by William Knox, that "We
are the same our fathers have been," for if we had
lived and moved and had our being in the dark days
when these customs obtained, we would have considered
them in the same light that our fore-fathers viewed
them and this should make us charitable toward these
frailties and mistakes of the past; we should be com-
forted with the reflection that such institutions are but
mile-stones of the centuries, marking the rapid prog-
ress of the race, but when we read of these customs
of the men and women of antiquity, we can but realize
the truth of the words of Longfellow, that
"* * the world Is very old,
And generations pass as they have passed,
A troop of shadows, moving with the sun."
CHAPTEE I.
MARRIAGE LAWS AND CUSTOMS.
The term marriage was defined, in the Institutes of
Justinian, as the lawful union of a man and a woman,
including an inseparable association of their lives. 1
Written almost fourteen centuries ago, few, if any,
of the many definitions of marriage, improve upon that
given in the Institutes of this old philosopher-lawyer-
Emperor of the Eomans. 2
As the basis of the marriage contract is the necessity
of society for some rule for the appropriation of the
opposite sexes to one another and the protection of that
relation, when once established, it is in one form or an-
other, the oldest institution of man and the source of
our most antique laws and customs. 3
The Chinese inform us that in the beginning, human
beings, like other animals, without morality or commu-
nity laws, wandered through the plains and forests, us-
ing their women in common ; that the offspring of such
unions knew their mothers, but rarely knew who their
fathers were and that this custom continued among
men, until the Emperor Fou-hi established the mar-
riage custom. 4
While the ancient " Heathen Chinese" were thus
1 Institutiones Justinianus, written 527-529, A. D.
2 Ringrose "Marriage Laws of the World," p. 10.
"Tylor, "Early History of Mankind;" McLennan's "Primitive
Marriage."
4 McLennan's "Primitive Marriage;" Ringrose, "Marriage Laws
of the World," p. 7.
(12)
MARRIAGE LAWS AND CUSTOMS. 13
holding their women in common, there is evidence that
among the old Teutons and Hindus, the "marriage by
capture" and "rape marriages " were still recognized
by law, long before the " bride-sale " or "sale mar-
riages," so generally obtaining in ancient Assyria and
Babylon, were established in Germany. 5
Some historians claim that, in the early days of
heathenry, capture was the only method used by young
men for securing their brides and the supply of con-
sorts depended upon the strength of the male, rather
than the existence of "the tender passion." 6
5 Tacitus, Germania, c. 18; II. Pollock and Maitland's History
English Law, 364; Johns' "Babylonian and Assyrian Laws," etc.
6 We are told that this rude custom obtains today in "Far Cathay,"
Blackwood's Magazine, July-Dec., 1887, vol. 42, p. 671.
E. J. Woods in his book, "The Wedding Day in All Ages and
Countries," claims that the old Hebrew expression of "taking a
wife," arose from the custom of capture, not common to the Israel-
ites, but common to other primitive peoples. (Vol. I, p. 9.) He
quotes Plutarch, as authority for the custom of the Spartans to
carry off their brides by capture. (Vol. I, pp. 40, 41.) Refers to
the Rape of the Sabines (vol. I, p. 52), the "Institutes" of Menu,
as providing one of the forms of marriage by capture, known to
the four classes of India (vol. I, p. 124). He claims that "the
capture of women prevailed among the aborigines of the Dekkan
and in Afghanistan." (Vol. I., p. 137) He maintains that "In New
Zealand and the Fejee and other islands of the Pacific, the custom
of capture of women for wives has prevailed from the earliest times
of the known history of those places." (Vol. I, p. 191.) "The form
of capture is observed in the marriages of the Kalmucks, the Nogay
Tartars, the Mongols, of the Ortous, in Tartary, the Circassians
and the people generally of the Caucasus." (Vol. I, p. 210.) He
claims that marriage by capture obtained in Poland, in the six-
teenth and seventeenth centuries (vol. I, p. 220), that the seizure
of wives by force obtained in Ireland (vol. II, p. 50), so if this
record is true, since this custom is found to obtain in these countries
so late as recent historical dates, it is not unbelievable that capture
was the order of the early barbarous days in our own and other
countries.
14 MARRIAGE LAWS AND CUSTOMS.
But the pictures of violence obtaining in these an-
cient days of heathenry are so obscured by the mists
of the past and such a large field is left for the con-
struction of ingenious theories, surrounded by ro-
mances of connubial bliss, resulting from this early cus-
tom of primitive society, that notwithstanding the gen-
eral popularity of the theory of "marriage by capture,"
some of the most eminent authorities are inclined to
deny that such a custom ever existed at all. 7
Some writers maintain that the rights of the individ-
ual were never more clearly defined in marriage, than
by primitive man, and that this is in accord with the
common tendency of the male, to attribute a religious
meaning to the ordinary intercourse with woman. 8
The Biblical theory of the custom, dates from the
command to our first parents, in Genesis: "Be fruitful,
and multiply and replenish the earth." 9
In the beginning, we find that from the rib, which
the Lord had taken from Adam, he made a woman
"and Tie brought her unto the man." 10
From Christian testimony, we have the evidence of
the first book of Moses, upon the antiquity of this insti-
tution, for when Shechem, the son of Hamor, after de-
filing Dinah, the daughter of Leah, longed for her, in