CHAPTER XI.

Wills, Quaint and Curious.

INTRODUCTION.

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 popular 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 keeping 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 information of antiquity.

There was perhaps never a time, in the history of our country, when the general feeling of individual unrest 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 progressed, therefore, we should be satisfied with the progress 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.

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 simplicity may be attained and the interminable delays, resulting from the present practice, incidental to too many new trials and other objectionable methods, obviated. 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 common law practice was greatly improved and simplified by this concerted action of the States and unquestionably 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 civilization, should be jealously preserved against the unscientific fragmentary legislation, too often reflecting the unjust and unequal demands of an aroused public sentiment, shaped by designing politicians, rather than by the “cool examiner of the public pulse,” prompted by beneficent objects.

Legislation, of course, is the simplest way of modifying or repealing law, but legislators, in our country, frequently 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 unjust law.

All that is old is not necessarily good, but just because it is old, is not a sufficient reason for discarding it. Legislation may become as limitless as the imagination 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 productive 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 ourselves 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 diseased 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 resulted in the wholesale slaughter of innocents, through a blind faith by the Courts, in the popular standards of the people, whereby unprovable offenses, were permitted to be established in utter disregard of the rules of evidence, and a vacillating, dependent judiciary helped for centuries, to perpetrate the most intolerable outrages against civilization, illustrates the necessity of an absolutely independent judiciary, free from the dominating influence of the frenzy of the public and a constant adherence to the rules of evidence and the proper legal ideals, in the administration of the law.

The Judicial Recall, as we see it in ancient history, is another of the present popular fantasies to be avoided. Hammurabi tried this system 2,500 years before Christ’s time, when witches were convicted according 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 because of some unpopular decision, the “most just Judge” of that city, Aristides, was recalled, and some votes were cast against him, because the voters were simply tired of hearing him called “The Just.” Aristotle’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 emancipated 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 of the earth, as it has been in England. This is testimony worth considering, for, judging the future by the past, if this practice undermined the judicial institutions of other countries, it would also undermine our own judicial system and ought to be avoided. The demand, by the ill-formed, for the destruction of the independence 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 “Leges Barbarorum” of the past.

In the discharge of their impartial functions, the judges of the people’s courts, have nothing to do with popular standards; it is with right and wrong, according to the just and equal standards of the law that they have to deal and it is as true to-day, as when the patriarch 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.”[1]

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 misconstrue and misinterpret their ablest judgments and as the courts are the final repositories of the people’s rights, when the public clamor is the loudest for the sacrifice of individual right, then the true judicial character performs its highest office, in withstanding all assaults by the ill-informed, upon the ramparts of the Temple of Justice.

With the wide-spread demand for the “judicial recall” 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, observed:

“I have made it the rule of my judicial life, and shall continue to do so, while invested with the authority pertaining to the office I hold, to decide questions as I understand them, after as careful an investigation as my capacity affords, without reference to what public opinion may be. I do and shall continue to regard the law as superior to the ebullition of outraged feeling, when communities 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 standards of scientific jurisprudence. A subservient judiciary, dependent upon the vacillating ebullitions of an unstable public sentiment would bring about a subversion of the important functions of this department of government, just as it did when popular sentiment controlled the incumbents of the judgment seat, in ancient 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 abortive 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 almost 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 unable 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 conviction 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 continued, and thousands were “pressed to death,” for standing mute, when arraigned upon a criminal charge. The same practice was followed in the witch persecutions in this country, in the seventeenth century and when we consider that these abominable customs obtained, until the past century, we are, indeed, to be congratulated 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” and “Privilege of Sanctuary,” illustrate the attempt of the Church to mollify, as it were, the cruelties resulting from the harsh administration of the criminal laws of mediaeval times, in England, by the secular courts and had it not been for these beneficent institutions—which were frequently utilized to protect criminals of the worst sort—there would have been no alleviation for the sufferings of the accused, 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 jocularity, mixed with a strain of pathos running through the “Quaint and Curious Wills” and testaments of antiquity.

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 antiquity 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 aid the lawyer, or did in this instance, who seeks to reproduce 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 prevented the exhaustive investigation that would otherwise 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 instruction 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 frequent illustrations from concrete cases, will appear.

None of the many legal antiquities of the Grecian States or the Roman Empire, which could be so profitably discussed, have been attempted, but only a few of the antique English laws and customs that have particularly attracted the attention of the author. These several 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 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 customs 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 occasionally wander back to scatter flowers upon the monumental shaft, without deserting the live issues and duties at present confronting us.

When we contemplate the lessons of the past, as presented 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 comforted with the reflection that such institutions are but mile-stones of the centuries, marking the rapid progress 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.”

FOOTNOTES:

[1] Exodus, XXIII., 2.

[2] Judge Davidson, of Texas, in Ex parte Martinez, 145 S. W. Rep. 959, 1023.