The Book-Hunter, John Hill Burton [essential reading TXT] 📗

are going to give their verdict. It would be difficult to decide which is the more happy application; but it must be admitted that we are a great way behind the South in our power of selecting a nomenclature immeasurably distant in meaning from the thing signified. We speak of a bond instead of a mortgage, and we adjudge where we ought to foreclose. We have no such thing as chattels, either personal or real.[46] If you want to know the English law of book-debts, you will have to look for it under the head of Assumpsit in a treatise on Nisi Prius, while a lawyer of Scotland would unblushingly use the word itself, and put it in his index. So, too, our bailments are merely spoken of as bills, notes, or whatever a merchant might call them. Our garneshee is merely a common debtor. Baron and feme we call husband and wife, and coverture we term marriage.

Still, for the honour of our country, it is possible to find a few technicalities which would do no discredit to our neighbours. Where one of them would bring a habeas corpus—a name felicitously expressive, according to the English method, of civil liberty—an inhabitant of the North, in the same unfortunate position, would take to running his letters. We have no turbary, or any other easement; but, to compensate us, we have thirlage, outsucken multures, insucken multures, and dry multures; as also we have a soumin and roumin, as any one who has been so fortunate as to hear Mr Outram's pathetic lyric on that interesting right of pasturage will remember, in conjunction with pleasing associations. To do the duty of a duces tecum we have a diligence against havers. We have no capias ad faciendum (abbreviated cap ad fac), nor have we the fieri facias, familiarly termed fi fa, but we have perhaps as good in the in meditatione fugæ warrant, familiarly abbreviated into fugie, as poor Peter Peebles termed it, when he burst in upon the party assembled at Justice Foxley's, exclaiming, "Is't here they sell the fugie warrants?"[47]

I am not sure but, in the very mighty heart of all legal formality and technicality—the Statutes at large—some amusing as well as instructive things might be found. Let me offer a guiding hint to the investigator ambitious of entering on this arduous field. The princely collector will, of course, put himself in possession of the magnificent edition of the Statutes issued by the Record Commission, but let not the unprofessional person who must look short of this imagine that he will find satisfaction in the prim pages of a professional lawyer's modern edition. These, indeed, are not truly the Statutes at large, but rather their pedantic and conventional descendants, who have taken out letters of administration to their wild ancestors. They omit all the repealed Statutes in which these ancestors might be found really at large sowing their wild oats, and consequently all that would give them interest and zest for those in search of such qualities.

It is not, for instance, in the decorous quartos of Roughhead, but in the hoary blackletter folios, looking older than they are—for blackletter adhered to the Statutes after it had been cast off by other literature—that one will find such specimens of ancestral legislation as the following:—

Attorneys.—(33 Henry VI. c. 7.)

"Item: Whereas of time not long past, within the city of Norwich, and the counties of Norfolk and Suffolk, there were no more but six or eight atturneys at the most coming to the King's Courts, in which time great tranquillity reigned in the said city and counties, little trouble or vexation was made by untrue or foreign suits, and now so it is, that in the said city and counties there be four score atturneys or more, the more part of them having no other thing to live upon, but only his gain by the practise of atturneyship: and also the more part of them not being of sufficient knowledge to be an atturney, which come to every fair, market, and other places, where is any assembly of people, exhorting, procuring, moving, and inciting the people to attempt untrue and foreign suits for small trespasses, little offences, and small sums of debt, whose actions be triable and determinable in Court Barons, whereby proceed many suits, more of evil will and malice than of truth of the thing, to the manifold vexations and no little damage of the inhabitants of the said city and counties, and all to the perpetual diminution of all the Court Barons in the said counties, unless convenient remedy be provided in this behalf. The foresaid Lord the King, considering the premises, by the advice, assent, and authority aforesaid, hath ordained and stablished that at all times, from hencefort, there shall be but six common atturneys in the said county of Norfolk, and six common atturneys in the said county of Suffolk, and two common atturneys in the said city of Norwich, to be atturneys in the Courts of Record."

Fustian.—(11 Henry VII. c. 27.)

"Now so it is, that divers persons, by subtilty and undue sleights and means, have deceivably imagined and contrived instruments of iron, with the which irons, in the most highest and secret places of their houses, they strike and draw the said irons over the said fustians unshorn; by means whereof they pluck off both the nap and cotton of the same fustians, and break commonly both the ground and threeds in sunder, and after by crafty sleeking, they make the same fustians to appear to the common people fine, whole, and sound: and also they raise up the cotton of such fustians, and then take a light candle and set it in the fustian burning, which sindgeth and burneth away the cotton of the same fustian from the one end to the other down to the hard threeds, in stead of shering, and after that put them in colour, and so subtilly dress them that their false work cannot be espied without it be by workmen sherers of such fustians, or by the wearers of the same, and so by such subtilties, whereas fustians made in doublets or put to any other use, were wont and might endure the space of two years and more, will not endure now whole by the space of four months scarcely, to the great hurt of the poor commons and serving men of this realm, to the great damage, loss, and deceit of the King's true subjects, buyers and wearers of such fustians," &c.

The history of statute-making is not absolutely divested of pleasantry. The best tradition connected with it at present arising in the memory is not to be brought to book, and must be given as a tradition of the time when George III. was king. Its tenor is, that a bill which proposed, as the punishment of an offence, to levy a certain pecuniary penalty, one half thereof to go to his Majesty and the other half to the informer, was altered in committee, in so far that, when it appeared in the form of an act, the punishment was changed to whipping and imprisonment, the destination being left unaltered.

It is wonderful that such mistakes are not of frequent occurrence when one remembers the hot hasty work often done by committees, and the complex entanglements of sentences on which they have to work.[48] Bentham was at the trouble of counting the words in one sentence of an Act of Parliament, and found that, beginning with "Whereas" and ending with the word "repealed," it was precisely the length of an ordinary three-volume novel. To offer the reader that sentence on the present occasion would be rather a heavy jest, and as little reasonable as the revenge offered to a village schoolmaster who, having complained that the whole of his little treatise on the Differential Calculus was printed bodily in one of the earlier editions of the Encyclopædia Britannica (not so profitable as the later), was told that he was welcome, in his turn, to incorporate the Encyclopædia Britannica in the next edition of his little treatise.

In the supposition, however, that there are few readers who, like Lord King, can boast of having read the Statutes at large through, I venture to give a title of an Act—a title only, remember, of one of the bundle of acts passed in one session—as an instance of the comprehensiveness of English statute law, and the lively way in which it skips from one subject to another. It is called—

"An Act to continue several laws for the better regulating of pilots, for the conducting of ships and vessels from Dover, Deal, and the Isle of Thanet, up the River Thames and Medway; and for the permitting rum or spirits of the British sugar plantations to be landed before the duties of excise are paid thereon; and to continue and amend an Act for preventing fraud in the admeasurement of coals within the city and liberties of Westminster, and several parishes near thereunto; and to continue several laws for preventing exactions of occupiers of locks and wears upon the River Thames westward; and for ascertaining the rates of water-carriage upon the said river; and for the better regulation and government of seamen in the merchant service; and also to amend so much of an Act made during the reign of King George I. as relates to the better preservation of salmon in the River Ribble; and to regulate fees in trials and assizes at nisi prius," &c.

But this gets tiresome, and we are only half way through the title after all. If the reader wants the rest of it, as also the substantial Act itself, whereof it is the title, let him turn to the 23d of Geo. II., chap. 26.

No wonder, if he anticipated this sort of thing, that Bacon should have commended "the excellent brevity of the old Scots acts." Here, for instance, is a specimen, an actual statute at large, such as they were in those pigmy days:—

"Item, it is statute that gif onie of the King's lieges passes in England, and resides and remains there against the King's will, he shall be halden as Traiter to the King."

Here is another, very comprehensive, and worth a little library of modern statute-books, if it was duly enforced:—

"Item, it is statute and ordained, that all our Sovereign lord's lieges being under his obeisance, and especially the Isles, be ruled by our Sovereign lord's own laws, and the common laws of the realm, and none other laws."

The Irish statute-book conveys more expressively than any narrative the motley contrasts of a history in the fabric of which the grotesque and the tragic are so closely interwoven. So early as the middle of the sixteenth century, English statesmen discover usquebaugh, and pass an act to extinguish it at once: "forasmuch as aqua vitæ, a drink nothing profitable to be daily drunken and used, is now universally throughout this realm of Ireland made, and especially in the borders of the Irishry, and for the furniture of Irishmen, and thereby much corn, grain, and other things are consumed, spent, and wasted," and so forth.

To get men to shave and wash themselves, and generally to conform to the standard of civilisation in their day, seems innocent if not laudable; yet is there a world of heartburning, strife, oppression, and retaliatory hatred expressed in the title of "an act, that the Irishmen dwelling in the counties of Dublin, Meath, Uriell, and Kildare, shall go apparelled like Englishmen, and wear their beards after the English manner, swear allegiance, and take English surnames." Further on we have a whole series of acts, with a conjunction of epithets in