Time and changes in the condition and constitution of society may require occasional and corresponding modifications. One single object, if your provision attains it, will entitle you to the endless gratitude of society, that of restraining judges from usurping legislation. And with no body of men is this restraint more wanting than with the judges of what is commonly called our general government, but what I call our foreign department. They are practicing on the constitution by inferences, analogies, and sophisms, as they would an ordinary law. They do not seem aware that it is not even a constitution, formed by a single authority, and subject to a single superintendence and control, but that it is a compact of many independent powers, every single one of which claims an equal right to understand it, and to require its observance. However strong the cord of compact may be, there is a point of tension at which it will break. A few such doctrinal decisions, as barefaced as that of the Cohens, happening to bear immediately on two or three of the large States, may induce them to join in arresting the march of government, and in arousing the co-States to pay some attention to what is passing, to bring back the compact to its original principles, or to modify it legitimately by the expressed consent of the parties themselves, and not by the usurpation of their created agents. They imagine they can lead us into a consolidate government, while their road leads directly to its dissolution. This member of the government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slyly and without alarm, the foundations of the constitution, can do what open force would not dare to attempt.
Thos. Jefferson to Edward Livingston, 25 March 1825.
BREEKS V. WOOLFREY, 1 Curt. 880
Court of Arches, 19 November 1838
Spes Mea Christus
Pray for the soul of J. Woolfrey
It is a holy and wholesome thought to pray for the dead.
(2 Mac. xii. 46.)
The articles purport to state the law, and the facts to which the law is to be applied. The first article, with reference to the inscriptions, alleges that, by the twenty-second article of the Church of England agreed upon in 1562, it is declared that “the Romish doctrine concerning purgatory, pardons, and other things therein mentioned, is a fond thing, vainly invented, and grounded upon no warranty of Scripture, but rather repugnant to the word of God.” That all persons erecting, or causing to be erected, in the churchyard of any parish any tomb- or head-stone, containing any inscription contrary to the doctrine and discipline of the Church of England and to the articles of the said Church, the person so doing ought not only to be peremptorily monished immediately to remove the same, but also be duly corrected and punished; and this proposition has not been denied by the other side. The second article sets forth the facts that, notwithstanding the premises, Mrs. Woolfrey did erect a tomb- or head-stone with the inscriptions before mentioned, which it alleges to be contrary to the doctrine and discipline of the Church of England, and to the articles, canons, and constitutions thereof, and particularly to the said twenty-second article, that due notice has been given to her to remove the same, but that she refuses so to do.
The authorities seem to go no further than this—to show that the Church discouraged prayers for the dead, but did not prohibit them; and that the XXII. Article is not violated by the use of such prayers.
I am, then, of opinion, on the whole of the case, that the offence imputed by the articles has not been sustained; that no authority or canon has been pointed out by which the practice of praying for the dead has been expressly prohibited; and I am accordingly of opinion that, if the articles were proved, the facts would not subject the party to ecclesiastical censure, as far as regards the illegality of the inscription on the tombstone. That part of the articles must, therefore, be rejected.
(Sir Herbert Jenner-Fust, Dean of Arches)
Now, it is of great moment that well-drawn laws should themselves define all the points they possibly can and leave as few as may be to the decision of the judges; and this for several reasons. First, to find one man, or a few men, who are sensible persons and capable of legislating and administering justice is easier than to find a large number. Next, laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice and expediency. The weightiest reason of all is that the decision of the lawgiver is not particular but prospective and general, whereas members of the assembly and the jury find it their duty to decide on definite cases brought before them. They will often have allowed themselves to be so much influenced by feelings of friendship or hatred or self-interest that they lose any clear vision of the truth and have their judgement obscured by considerations of personal pleasure or pain. In general, then, the judge should, we say, be allowed to decide as few things as possible. But questions as to whether something has happened or has not happened, will be or will not be, is or is not, must of necessity be left to the judge, since the lawgiver cannot foresee them.
Aristotle, Rhetoric, i. 1.
Si quis hominem occiderit et totam facultatem data habuerit unde tota lege conpleat XII juratores donare debet quod nec super terram nec subtus terram plus facultatem non habeat quam jam donavit. Et postea debet in casa sua introire et de quattuor angulos terrae in pugno collegere et sic postea in duropullo hoc est in limitare stare debet intus in casa respiciens et sic de sinistra manum de illa terra trans scapulas suas jactare super illum quem proximiorem parentem habet. Quod si jam pater et fratres solserunt tunc super suos debet illa terra jactare; id est super tres de generatione matris et super tres de generatione patris qui proximiores sunt. Et sic postea in camisia discinctus discalcius palo in manu sepe sallire debet ut pro medietate quantum conpositione diger est aut quantum lex addicat illi tres solvant hoc est illi alii qui de paterna generatione veniunt facere debent. Si vero de illis quicumque proximior fuerit ut non habeat unde integrum debitum solvat quicumque de illis plus habet iterum super illum chrenecruda ille qui pauperior est jactet ut ille tota lege solvat. Quam si vero nec ipse habuerit unde tota persolvat tunc illum qui homicidium fecit qui eum sub fidem habuit in mallo praesentare debent et sic postea eum per quattuor mallos ad suam fidem tollant. Et si eum in conpositione nullus ad fidem tullerunt hoc est ut redimant de quo non persolvit tunc de sua vita conponat.
J. Fr. Behrend, 2nd ed. revised by Richard Behrend, Lex Salica, Weimar: Hermann Böhlaus Nachfolger, 1897, cap. LVIII., pp. 121-123.
Miserere mei, Deus, secundum magnam misericordiam tuam;
et secundum multitudinem miserationum tuarum, dele iniquitatem meam.
Psalmus 50. iii.
LAWS OF VIRGINIA, MAY 1732−−5th & 6th GEORGE II.
An Act for settling some doubts and differences of opinion, in relation to the benefit of Clergy; for allowing the same to Women; and taking away of Reading; and to disable certain Persons, therein mentioned, to be Witnesses.
I. WHEREAS it has been held, That where, by an act of parliament, made in England before the settlement of this colony, the benefit of clergy, as it is called, hath been taken away from any offences, that persons committing the like offences in this colony, are excluded by virtue thereof; but this opinion, if it were nicely examined, might possibly be questioned: And for settling the law in that point,
II. Be it enacted, by the Lieutenant-Governor, Council and Burgesses, of this present General Assembly, and by the authority of the same, That where, by any act of the parliament of England, made before the fourth year of the reign of the late king James the first, the benefit of clergy is taken away from any offence, the same shall hereafter be adjudged to be taken away from the like offence, committed in this colony, in respect to principals, and accessories standing mute, and challenging a greater number of the jury than the law allows.
III. And whereas the old distinction, of allowing the benefit of clergy, to men only, and excluding women, and putting the offender, being a layman, to read, hath been taken away by the parliament of England: Be it enacted, That where a man, being convicted of any felony, may demand the benefit of his clergy, if a woman be convicted of the same, or the like offence, upon her prayer to have the benefit of this act, judgment of death shall not be given against her upon such conviction, nor execution awarded upon any outlawry, for such offence; but she shall suffer the same punishment as a man should suffer, that has the benefit of his clergy allowed him in the like case; That is to say, shall be burnt in the hand by the jailor in open court, and shall be afterwards dealt with, as a man in the like case might be. And if any person be convicted of a felony, for which he ought to have the benefit of clergy, and shall pray to have the benefit of this act, he shall not be required to read, but without any reading, shall be allowed, taken, and reputed to be, and punished as a clerk convict; which shall be as effectual, to all intents and purposes, and as advantageous to him, as if he had read as a clerk; any other law or statute, to the contrary hereof, in any wise, notwithstanding. Clergy allowed to women.
IV. And whereas a question hath lately arisen, touching the right of negros, to the benefit of clergy: for the determination thereof, Be it further enacted, That when any negro, mulatto, or Indian whatsoever, shall be convicted of any offence within the benefit of clergy, judgment of death shall not be given against him or her, upon such conviction; but he or she, shall be burnt in the hand in open court, by the jailor, and suffer such other corporal punishment, as the court shall think fit to inflict; except where such negro, mulatto, or Indian, shall be convicted of manslaughter, or the felonious breaking and entring any house in the night-time, or for breaking and entring in the day-time any house, and taking from thence any goods or chattels whatsoever, to the value of five shillings sterling; and where he or she hath once had the benefit of this act; and in those cases, such negro, mulatto, or Indian, shall suffer death, and be excluded from the benefit of this act.
V. And whereas negros, mulattos, and Indians, have lately been frequently allowed to give testimony as lawful witnesses in the general court, and other courts of this colony, when they have professed themselves to be christians, and been able to give some account of the principles of the christian religion: but forasmuch as they are people of such base and corrupt natures, that the credit of their testimony cannot be certainly depended upon, and some juries have altogether rejected their evidence, and others have given full credit thereto: For preventing the mischiefs that may possibly happen by admitting such precarious evidence,
VI. Be it further enacted, That no negro, mulatto, or indian, either a slave or free, shall hereafter be admitted in any court of this colony, to be sworn as a witness, or give evidence in any cause whatsoever, except upon the trial of a slave, for a capital offence; in which such case they shall be allowed to give evidence, in the manner directed by one act of assembly, made in the ninth year of the reign of the late king George, intituled, An Act directing the trial of Slaves committing Capital Crimes; and for the more effectual punishing Conspiracies and Insurrections of them; and for the better government of Negros, Mulattos, and Indians, bond or free.
In one of these Courts, in January last, a Negro woman Slave was tryed for stealing; and as I knew her to be a Christian (for not long before she had, upon some pretence, I forget what, sued for her Freedom in the General Court, where she was examined touching her Faith of which she gave a tolerable account) I desired a Lawyer to attend the Tryal, and in case she was found Guilty, to inform the Justices that notwithstanding she was a Slave, it was my opinion, as a christian, she was Intitled to the benefit of the Clergy; upon which after some little debate, for it was never Inquired into before, the Question was put, and the judges were divided, so it was agreed to be deferr’d until another and a fuller Court. When a report was made to me of their Proceedings, and fearing it might go against her if I left to be determined there, I advised with our ablest Lawyers, and from the county court had it Adjourned into the General Court, resolving to have this Matter argued in the most public manner by our best Lawyers, as a thing of great consequence, by which all the courts in the country for the future should govern themselves, and not doubting but it would be carried in favour of the Christian though a black one; But when the Day of hearing came, notwithstanding four out of five of the Gentlemen learned in the Law, of which number the King’s Attorney General was one, gave it as their opinion, supported by Proper Arguments, that she had a Right to plead the benefit of that statute, when put the Question, we were divided here too, six and six; and now it rests to be determined by the opinion of the Sollicitor & Attorney General in England, which I shall send for as soon as our Lawyers have drawn up a State of the Case as they have directions to do, with the sense of the Laws of this Country, and political reasons for and against it. But I can assure your Lordship that there is no Law against it, if there is, I think it ought to be repealed: and for political reasons, they are of equal force against white as black People being Christians. I shant trouble your Lordship with particulars, but thought it my Duty to acquaint your Lordship with it, not knowing whether Mr Commissary will do so or not, who was one of the judges.
— Extract from letter of Lt. Governor William Gooch to the Bishop of London, Williamsburg, 28 May 1731.
Inveraray, 4th November, 1747.—The Magistrats considering that Mary Semple, spouse to William Smith, soldier, did lately, when called before them to answer for immoral practices, shew the utmost contempt of their authority by giving very abusive language and resisting their officers and having also learnt from several of the inhabitants of this place that the said Mary Semple is a contentious and offensive neighbour, and harbours bad company in her house, and is in several respects an unworthy member of society, they do therefor appoint her to be banished out of this burgh and limits thereof not to return under the pain of imprisonment and such other punishments as the Magistrats shall think fit, and they appoint the town officers to-morrow at twelve of the clock to put this sentence into execution.
Peter McIntyre, Odd incidents in olden times, or, Ancient records of Inveraray, Glasgow: Aird & Coghill, 1904.
A fifth form of the ordeal was the test of eating consecrated bread and cheese. This was known as the corsned, or morsel of execration. The priest wrote the Lord’s Prayer on the bread, of which he then weighed out a certain quantity—ten pennyweights—and so likewise with the cheese. Under the right foot of the accused he set a cross of poplar wood, and holding another cross of the same material over the man’s head, threw over his head the theft written on a tablet. He placed the bread and cheese at the same moment in the mouth of the accused, and, on doing so, recited the conjuration:
I conjure thee, O man, by the Father and the Son and the Holy Ghost and by the four-and-twenty elders, who daily sound praises before God, and by the twelve patriarchs, the twelve prophets, the twelve apostles, the evangelists, martyrs, confessors, and virgins, by all the saints and by our Redeemer, our Lord Jesus Christ, who for our salvation and for our sins did suffer His hands to be affixed to the cross; that if thou wast a partner in this theft or didst know of it, or hadst any fault, that bread and cheese may not pass thy gullet and throat, but that thou mayest tremble like an aspen-leaf, Amen; and not have rest, O man, until thou dost vomit it forth with blood, if thou hast committed aught in the matter of the aforesaid theft. Through Him who liveth.
The following prayer and exorcism were also used and ordered to be repeated three times:
Holy Father, omnipotent, eternal God, maker of all things visible, and of all things spiritual, who dost look into secret places, and dost know all things, who dost search the hearts of men, and dost rule as God, I pray Thee, hear the words of my prayer; that whoever has committed or carried out or consented to that theft, that bread and cheese may not be able to pass through his throat.
I exorcize thee, most unclean dragon, ancient serpent, dark night, by the word of truth, and the sign of light, by our Lord Jesus Christ, the immaculate Lamb generated by the Most High, conceived of the Holy Ghost, born of the Virgin Mary—Whose coming Gabriel the archangel did announce; Whom seeing, John did call out: This is the living and true Son of God—that in no wise mayest thou permit that man to eat this bread and cheese, who has committed this theft or consented to it or advised it. Adjured by Him who is to come to judge the quick and the dead, so thou close his throat with a band—not, however, unto death.
— F.J. Snell, The Customs of Old England, London: Methuen & Co., 1911.
* * *
Blount (Tenures, ut supra 663) cites the laws of King Canute, chapter 6 (but the reference does not apply) for the following: “Si quis altari ministrantium accusetur, et amicis destitutus sit, cum sacramentales non habeat, vadat ad judicium quod Anglice dicitur ‘Corsned’ et fiat sicut Deus velit, nisi super sanctum Corpus Domini permittatur ut se purget.” This law is found in the Ordinances of Æthelred, A.D. 1014, art. 22; Anc. Laws and Inst. i. 345.
Improper use or mutilation of state or Confederate flag or emblem prohibited.—
Adomnán has also set down an order of malediction for them, to wit, a psalm for every day up to twenty days and an apostle or a noble saint for every day to be invoked with it, to wit, “Quare” and Peter, “Domine quid multiplicati” and John, “Verba mea” and Philip, “Domine Deus meus” and Bartholomew, “Dixit insipiens” and Thomas, “Deus, Deus meus respice” and Matthew “Iudica me Domine innocentium” and Jacob “Dixit iniustus” and Simon “Domine ne in furore” and Thaddeus, “Dixi custodiam” and Mattias, “Deus deorum” and Mark, “Quid gloriaris” and Luke, “Dixit insipiens” and Stephen, “Exurgat deus” and Ambrose, “Salvum me” and Gregory of Rome, “Deus, venerunt gentes” and Martin, “Deus, quis similis” and old Paul, “Deus laudem” and George, “Audite caeli quae loquor,” “Non nobis, Domine, non nobis, sed nomini tuo,” &c.
— Cáin Adamnáin, xxxii.
After fourteen years Adomnán obtained this Law of God, and this is the cause. On Pentecost Eve, a holy angel of the Lord came to him, and again at Pentecost after a year, and seized a staff, and struck his side and said to him, “Go forth into Ireland, and make a law in it that women be not in any manner killed by men, through slaughter or any other death, either by poison, or in water, or in fire, or by any other beast, or in a pit, or by dogs, but that they shall die in their lawful bed. Thou shalt establish a law in Ireland and Britain for the sake of the mother of each one, because a mother has borne each one, and for the sake of Mary mother of Jesus Christ, through whom all are. Mary besought her Son on behalf of Adomnán about this Law. For whoever slays a woman shall be condemned to a twofold punishment: that is, his right hand and his left foot shall be cut off before death, and then he shall die, and his kindred shall pay seven full cumals and one-seventh part of the penance. If, instead of life and amputation, a fine has been imposed, the penance is fourteen years, and fourteen cumals shall be paid. But if a host has done it, every fifth man up to three hundred shall be condemned to that punishment; if few, they shall be divided into three parts. The first part of them shall be put to death by lot, hand and foot having been first cut off; the second part shall pay fourteen full cumals; the third shall be cast into exile beyond the sea, under the rule of a hard regimen; for the sin is great when any slays the mother and sister of Christ’s mother and the mother of Christ, and her who carries a spindle and who clothes every one. But he who from this day forward shall put a woman to death and does not do penance according to the Law, shall not only perish in eternity, and be cursed for God and Adomnán, but all shall be cursed that have heard it and do not curse him, and do not chastise him according to the judgement of this Law.”
— Cáin Adamnáin, xxxiii.
His ignorance was as remarkable as his knowledge. Of contemporary literature, philosophy and politics he appeared to know next to nothing. Upon my quoting Thomas Carlyle, he inquired in the naivest way who he might be and what he had done. My surprise reached a climax, however, when I found incidentally that he was ignorant of the Copernican Theory and of the composition of the Solar System. That any civilized human being in this nineteenth century should not be aware that the earth travelled round the sun appeared to be to me such an extraordinary fact that I could hardly realize it.
“You appear to be astonished,” he said, smiling at my expression of surprise. “Now that I do know it I shall do my best to forget it.”
“To forget it!”
“You see,” he explained, “I consider that a man’s brain originally is like a little empty attic, and you have to stock it with such furniture as you choose. A fool takes in all the lumber of every sort that he comes across, so that the knowledge which might be useful to him gets crowded out, or at best is jumbled up with a lot of other things so that he has a difficulty in laying his hands upon it. Now the skilful workman is very careful indeed as to what he takes into his brain-attic. He will have nothing but the tools which may help him in doing his work, but of these he has a large assortment, and all in the most perfect order. It is a mistake to think that that little room has elastic walls and can distend to any extent. Depend upon it there comes a time when for every addition of knowledge you forget something that you knew before. It is of the highest importance, therefore, not to have useless facts elbowing out the useful ones.”
“But the Solar System!” I protested.
“What the deuce is it to me?” he interrupted impatiently; “you say that we go round the sun. If we went round the moon it would not make a pennyworth of difference to me or to my work.”
I was on the point of asking him what that work might be, but something in his manner showed me that the question would be an unwelcome one. I pondered over our short conversation, however, and endeavoured to draw my deductions from it. He said that he would acquire no knowledge which did not bear upon his object. Therefore all the knowledge which he possessed was such as would be useful to him. I enumerated in my own mind all the various points upon which he had shown me that he was exceptionally well-informed. I even took a pencil and jotted them down. I could not help smiling at the document when I had completed it. It ran in this way—
SHERLOCK HOLMES—his limits.
1. Knowledge of Literature.—Nil. 2. Philosophy.—Nil. 3. Astronomy.—Nil. 4. Politics.—Feeble. 5. Botany.—Variable. Well up in belladonna, opium, and poisons generally. Knows nothing of practical gardening. 6. Geology.—Practical, but limited. Tells at a glance different soils from each other. After walks has shown me splashes upon his trousers, and told me by their colour and consistence in what part of London he had received them. 7. Chemistry.—Profound. 8. Anatomy.—Accurate, but unsystematic. 9. Sensational Literature.—Immense. He appears to know every detail of every horror perpetrated in the century. 10. Plays the violin well. 11. Is an expert singlestick player, boxer, and swordsman. 12. Has a good practical knowledge of British law.
When I had got so far in my list I threw it into the fire in despair. “If I can only find what the fellow is driving at by reconciling all these accomplishments, and discovering a calling which needs them all,” I said to myself, “I may as well give up the attempt at once.”
— Sir Arthur Conan Doyle, A Study in Scarlet, Chapter II: The Science of Deduction.