CURIOSITIES RESPECTING THE CUSTOMS OF MANKIND.—(Continued.)

Origin of the Sheriff’s counting Hobnails.—This is not an absurd custom of antiquity, such as nobody knows when it begun, or why it is continued; but it originated from the following circumstances:—

In former times, when money was very scarce, and when we had no larger coin than a penny, the reserved rents or grants of lands or tenements, especially small ones, were usually paid in something that had a reference to the nature of the thing granted, or the occupation of the grantee.

The two following extracts from records in the Exchequer, with the translation, will clear up the point.

“Walter de Brun Mareschallus, de Stranda, redit compotum de sex femis equorum, pro habenda quadam placea in Parochia St. Clementis, ad fabrica quam ibidem locandam.”—Mag. Rot. 19. Henry III.

“Walter Mareschallus, ad Crucem Lapideam, redit sex ferra equorum cum clavibus, pro quadam fabrica quam de Rege tenet in capite ex opposito crucis lapidea.”—Memor. 1. Edward I.

“Walter le Brun, Mareshall, or farrier, of the Strand, renders six horse-shoes, to have a certain place in the parish of St. Clement’s, to build a forge there.”—Great Rolls of the 19th Henry III.

“Walter Mareshall, or the farrier at the Stone Cross, renders six horse-shoes with their nails, for (or as a reserved rent) a certain forge, opposite to the stone cross, which he holds of the king in capite.”—Memoranda Rolls in the Exchequer of the first year of King Edward the First.

The first of these points out the beginning, as well as the reason, of the payment of these horse-shoes and nails; for it was to have a piece of ground to build a forge on, therefore that must be the first payment. The nineteenth year of Henry the Third falls in with 1234, now five hundred and eighty-eight years ago. In process of time, this piece of ground, and buildings on it, came to the mayor and citizens of London; and they, by the sheriffs, have continued to render them into the Exchequer annually to this day.

The spot where the stone cross once stood had afterwards a Maypole erected on it, which many now living can well remember.

Origin of the Order of the Garter.—This is variously related by historians. The common and not improbable account is, that the Countess of Salisbury, happening at a ball to drop her garter, the King took it up, and presented it to her in these words, “Honi soit qui mal y pense;” i. e. Evil to him that evil thinks. This accident gave rise to the order and the motto; it being the spirit of the times to mix love and war together. In the original statutes, however, there is not the least hint of allusion to such a circumstance, farther than is conveyed in the motto.—Camden, Fern, &c. take the order to have been instituted on occasion of the victory obtained by Edward over the French, at the battle of Cressy. That prince, says some historians, ordered his garter to be displayed as a signal of battle; in commemoration whereof, he made a garter the principal ornament of the order erected in memory of this signal victory, and the symbol of this indissoluble union of the knights. And they account for the motto, that king Edward having laid claim to the kingdom of France, denounced shame and defiance upon him that should dare to think amiss of the just enterprise he had undertaken for recovering his lawful rights to that crown; and that the bravery of those knights whom he had elected into this order was such as would enable him to maintain the quarrel against those that thought ill of it. This interpretation, however, appears to be rather forced.—A still more ancient origin of this order is given in Rostel’s Chronicle, lib. vi. quoted by Granger, in the Supplement to his Biographical History: viz. that it was devised by Richard I. at the siege of Acre, when he caused twenty-six knights, who firmly stood by him, to wear thongs of blue leather about their legs; and that it was revived and perfected in the nineteenth year of Edward III.

Origin and History of the Claim and Allowance of the ‘Benefit of Clergy’ in Criminal Convictions.

The following learned dissertation is extracted from ‘Chitty’s Practical Treatise on the Criminal Law.’

“By far the most important circumstance intervening between conviction and judgment, is the claim and allowance of the Benefit of Clergy, in those cases where it is by law to be granted. It is of course claimed immediately before judgment at the assizes. This is one of the most singular relics of old superstition, and certainly the most important. That, by a mere form, without the shadow of existing reason to support it, the severity of the common law should be tempered, may seem strange to those who have been accustomed to regard our criminal law as a regular fabric, not only attaining great practical benefit, but built upon solid and consistent principles. The Benefit of Clergy is, no doubt, of great practical advantage, compared to the dreadful list of offences which would otherwise be punished as capital; but it would be well worthy of an enlightened age to forsake such a subterfuge, and at once, without resorting to it, to apportion the degree of suffering to the atrocity and the danger of the crimes.

“The history of this singular mode of pardon, if so it can be termed, is both curious and instructive. In the early periods of European civilization, after the final destruction of the Roman empire, the church obtained an influence in the political affairs of nations, which threw a peculiar colouring over their original institutions. Monarchs who were desirous of atoning for atrocious offences, or of obtaining the sanction of heaven to their projects of ambition, were easily persuaded to confer immunities on the clergy, whom they regarded as the vicegerents of God. Presuming on these favours, that aspiring body soon began to claim as a right what had been originally conferred as a boon, and to found their demand to civil exemptions on a divine and indefeasible charter, derived from the text of scripture, “Touch not mine anointed, and do my prophets no harm.” It need exceed no surprise that they were anxious to take advantage of their dominion over the conscience, to exempt themselves from the usual consequences of crime. To the priests, impunity was a privilege of no inconsiderable value. And so successful was the pious zeal to shield those who were dedicated to religion from the consequences of any breach of temporal enactments, that in several countries they obtained complete exemption from all civil liabilities, and declared themselves responsible only to the pope and his ecclesiastical ministers. They erected themselves into an independent community, and even laid the temporal authorities under subjection. Nobles were intimidated into vast pecuniary benefactions, and princes trembled at the terrors of spiritual denunciation. In England, however, this authority was always comparatively feeble. The complete exemption of the clergy from secular punishments, though often claimed, was never universally admitted: for repeated objections were made to the demand of the bishop and ordinary to have the clerks remitted to them as soon as they were indicted. At length, however, it was finally settled in the reign of Henry VI. that the prisoner should first be arraigned and might then claim the Benefit of the Clergy as an excuse for pleading, or might demand it after conviction: and the latter of these courses has been almost invariably adopted, to allow the prisoner the chance of a verdict of acquittal.

“But if the privileges of the church were less dangerous in England than on the continent, they soon became more extensive. They not only embraced every order of clergymen, but were claimed for every subordinate officer of religious houses, with the numerous classes of their retainers. And so liberal was the application of these dangerous benefits, that, at length, every one who in those days of ignorance was able to read, though not even initiated in holy orders, began to demand them, such reading being deemed evidence of his clerical profession. The privileges of the clergy were recognized and confirmed by statute in the reign of Edward the Third. It was then enacted, that all manner of clerks, secular as well as religious, should enjoy the privileges of holy church for all treasons or felonies except those immediately affecting his majesty. To the advantage of this provision, all who could read were admitted. But as learning became more common, this extensive interpretation was found so injurious to the security of social life, that the legislature, notwithstanding the opposition of the church, were compelled to afford a partial remedy.

“In the reign of Henry the Seventh, a distinction was drawn between persons actually in holy orders, and those who, in other respects secular, were able to read; by which the latter were only allowed the benefit of their learning once, and, on receiving it, to be branded in the left thumb with a hot iron, in order to afford evidence against them on any future occasion. The church seems to have lost ground in the succeeding reign, probably in consequence of the separation of England from the sway of the Roman pontiff; for all persons, though actually in orders, were rendered liable to be branded, in the same way as the learned class of laymen. But, in the time of Edward the Sixth, the clergy were restored to all the rights of which they were deprived by his predecessor, except as to certain atrocious crimes, which it became necessary more uniformly to punish. At the same time, some of the more enormous evils attendant on this general impunity were done away. Murder, poisoning, burglary, highway-robbery, and sacrilege, were excepted from all that privilege which was confirmed as to inferior offences. But peers of the realm, for the first offence were to be discharged, in every case, except murder and poisoning, even though unable to read.

“But here we must pause, before we proceed to follow the gradual improvement of this privilege, to inquire what was originally done with an offender to whom it was allowed by those ecclesiastical authorities who claimed the right of judging him, and in what manner the power of the church in this respect was ultimately destroyed. It appears, that after a layman was burnt in the hand, a clerk discharged on reading, or a peer without either burning or penalty, he was delivered to the ordinary, to be dealt with according to the ecclesiastical canons. Upon this, the clerical authorities instituted a kind of purgation, the real object of which was to make him appear innocent, who had already been shewn to be guilty, and to restore him to all those capacities of which his conviction had deprived him. To effect this, the party himself was required to make oath of his innocence, though before he might have confessed himself guilty. Then twelve compurgators were called to testify their belief in the falsehood of the charges. Afterwards he brought forward witnesses completely to establish that innocence, of which he had induced so weighty a presumption. Finally, it was the office of the jury to acquit him; and they seldom failed in their duty. If, however, from any singular circumstance, they agreed in the justice of the conviction, the culprit was degraded, and compelled to do penance. As this seldom occurred, and the most daring perjuries were thus perpetually committed, the courts of common law were soon aroused to abridge the power of these clerical tribunals. They, therefore, sometimes delivered over the privileged of felony, when his guilt was very atrocious, without allowing him to make purgation; the effect of which proceedings was, his perpetual imprisonment, and incapacity to acquire personal or to enjoy real estate, unless released by his majesty’s pardon. But the severity of this proceeding almost rendered it useless; and it became absolutely necessary for the legislature to interfere, in order to prevent the contemptible perjuries which this absurd ceremony produced under the sanction and pretence of religion. This desirable object was effected in the reign of Elizabeth; and the party, after being allowed his clergy, and burnt in the hand, was to be discharged without any interference of the church to annul his conviction.

“The clerical process being thus abolished, it was thought proper, at the same time, to empower the temporal judges to inflict a further punishment where they should regard it as proper. The eighteenth Elizabeth, c. vii. empowered them, therefore, to direct the convict to be imprisoned for a year or any shorter period. But the law on this subject was still in many respects imperfect. Females were still liable to the punishment of death, without any exemption, in all cases of simple felony; because, being never eligible to the clerical office, they were not included in any of the extensions of the Benefit of Clergy. No other proof need be adduced to shew the absurdity of the very foundations of the system. At length it was enacted that women convicted of simple larcenies under the value 10s. should be punished with burning in the hand and whipping, exposure in the stocks, or imprisonment for any period less than a year. And in the reign of William and Mary they were admitted to all the privileges of men, in clergiable felonies, on praying the benefit of the statute; though they can only once be allowed this means of escaping. In the same reign, the punishment of burning in the hand was changed for a more visible stigma on the cheek, but was soon afterwards brought back to the original practice.

“Hitherto all laymen except peers, who, on their conviction, were found unable to read, were liable to suffer death for every clergiable felony. But it was at length discovered, that ignorance, instead of an aggravation, was an excuse for guilt, and that the ability to read was no extenuation of crime; and, therefore, by fifth Ann, c. vi. the idle ceremony of reading was abolished, and all those who were before entitled to clergy on reading, were now to be admitted without any such form to its benefits. At the same time it was sensibly felt that the branding, which had dwindled into a mere form, and the year’s imprisonment which the judges were empowered to inflict, were very inadequate punishments for many clergiable offences; and, therefore, the court were authorized to commit the offenders to the house of correction for any time not less than six months nor exceeding two years, and to double it in case of escaping.

“Further alterations have since been made in the penalties consequent upon clergy. The fourth Geo. I. c. xi. and sixth Geo. I. c. xxiii. provide, that the court, on the allowance of this benefit for any larceny whether grand or petty, or other felonious theft not excluded from the statutable indulgence, may, instead of judgment of burning in case of men, and whipping in that of females, direct the offender to be transported for seven years to America, which has been since altered to any part of his majesty’s colonies. To return within the period, was, at the same time, made felony without Benefit of Clergy. And by several subsequent provisions, many wise alterations have been made respecting transportation, and the mode of treating offenders while under its sentence.

“At length the burning in the hand was entirely done away, and the judges were empowered to sentence the criminal, in its room, and in addition to the former penalties, to a pecuniary fine, or, except in the case of manslaughter, to private whipping, not more than thrice to be inflicted, in the presence of three witnesses. Provisions were at the same time made for the employment of this description of convicts in penitentiary houses, where a system of reformation might be adopted, and an experiment made how far punishment might become conducive to its noblest and most legitimate use—the reformation and benefit of the offender. But this regulation, though applauded by Blackstone and other humane writers, after having been continued by several subsequent acts, was recently suffered to expire. It appears from these several modern regulations, that, as observed by Mr. Justice Foster, we now consider Benefit of Clergy, or rather the benefit of the statutes, as a relaxation of the rigour of the law, a condescension to the infirmities of the human frame, exempting offending individuals in some cases from the punishment of death, and subjecting them to milder punishment; and therefore, in the case of clergiable felonies, we now profess to measure the degree of punishment by the real enormity of the offence, and not, as the ignorance and superstition of former times suggested, by a blind respect for sacred persons or sacred functions, nor by an absurd distinction between subject and subject, originally owing to impudent pretension on one hand, and to mere fanaticism on the other.”

Curious Tenures.—A farm at Broadhouse, in Langsett, in the parish of Peniston, and county of York, pays yearly to Godfrey Bosville, Esq. ‘a snow-ball at Midsummer, and a red rose at Christmas.’

William de Albermarle holds the manor of Loston, ‘by the service of finding, for our lord the king, two arrows, and one loaf of oat bread, when he should hunt in the forest of Eartmoor.’

Solomon Attefield held land at Repland and Atterton, in the county of Kent, upon condition ‘that as often as our lord the king would cross the sea, the said Solomon and his heirs ought to go along with him, to hold his head on the sea, if it was needful.’

John Compes had the manor of Finchfield given him by Edward III. for the service of ‘turning the spit at his coronation.’

Geoffrey Frumbrand held sixty acres of land in Wingfield, in the county of Suffolk, by the service of paying yearly to our lord the king two white doves. John de Roches holds the manor of Winterslew, in Wiltshire, by the service that when the king should abide at Clarendon, he should go into the butlery of the king’s palace there, and draw, out of whatever vessel be chose, as much wine as should be needful for making a pitcher of claret, which he should make at the king’s expense, and that he should serve the king with a cup, and should have the vessel whence he took the wine, with all the wine then in it, together with the cup whence the king should drink the claret.

The town of Yarmouth is, by charter, bound to send the sheriffs of Norwich a hundred herrings, which are to be baked in twenty-four pies or patties, and delivered to the lord of the manor of East Carlton, who is to convey them to the king.

At the coronation of James II. the lord of the manor of Heyden, in Essex, claimed to hold the basin and ewer to the king by virtue of one moiety, and the towel by virtue of the other moiety of the manor, whenever the king washed before dinner; but the claim was allowed only as to the towel.

The privileges of the great officers of the ancient British court, were particularly striking. Each was annually presented by the king and queen with a piece of linen and woollen cloth, besides some old clothes from the royal wardrobe. The king’s riding-coat was three times a year given to the master of the mews; his caps, saddles, bits, and spurs, became the perquisite of the master of the horse; and the chamberlain appropriated to himself his old clothes and bed-quilts.

The third in rank, in the court of the Anglo-Saxon kings, was, the steward, who had a variety of perquisites, of which the following were the most remarkable:—‘As much of every cask of plain ale, and as much of every cask of ale with spiceries, as he could reach with the second joint of the middle finger; and as much of every cask of mead, as he could reach with the first joint of the same finger.’

Our next article is on The Origin of May Poles and Garlands.—It was a custom among the ancient Britons, before they were converted to Christianity, to erect May-poles, adorned with flowers, in honour of the goddess Flora; and the dancing of milkmaids on the first of May before garlands, ornamented with flowers, is only a corruption of the ancient custom, in compliance with other rustic amusements.

The leisure days after seed-time had been chosen by our Saxon ancestors for folk-motes, or conventions of the people. It was not till after the Norman conquest that the Pagan festival of Whitsuntide fully melted into the Christian holiday of Pentecost. Its original name is Whittentide, the time of choosing the wits or wisemen to the wittenagemotte. It was consecrated to Hertha, the goddess of peace and fertility; and no quarrels might be maintained, no blood shed, during this truce of the goddess. Each village, in the absence of the baron at the assembly of the nations, enjoyed a kind of saturnalia. The vassals met upon the common green around the May-poles, where they erected a village lord, or king, as he was called, who chose his queen. He wore an oaken, and she a hawthorn wreath; and together they gave laws to the rustic sports during these sweet days of freedom. The Maypole, then, was the English tree of liberty. How are these times of village simplicity and merriment vanished!

Curious Custom at Oakham.—Oakham is remarkable for the following curious custom. Every peer of the realm, the first time he comes within the precincts, forfeits a shoe from his horse to the lord of the manor and castle, unless he agrees to redeem it with money; in which case a shoe is made according to his direction, ornamented in proportion to the sum given by way of fine, and nailed on the castle hall door. Some shoes are of curious workmanship, and stamped with the names of the donors: some are made very large, and some gilt. An ancient poet says of this county,

“Small shire that can produce to thy proportion good,
One vale of special name, one forest, and one flood.”

A Curious Practice in North Holland.—To every house, of whatever quality, there is an artificial door, elevated near three feet above the level of the ground, and never opened but upon two occasions. When any part of the family marries, the bride and bridegroom enter the house by this door; and when either of the parties die, the corpse is carried out by the same door. Immediately after the due ceremonies are performed in either of these cases, this door is fastened up, never to turn on its hinges again, till some new event of a similar nature demands its services.