Legal Lore Part 8

Fatal Links.

BY ERNEST H. RANN.

A consideration of the detection of crime brings forcibly to the mind the fact that officers of law have frequently to depend for success on the accidental discovery of the most trifling items and incidents. Conversely the criminal section of the community who prey on the weakness or folly of their neighbours have to fear not only a knowledge of their princ.i.p.al movements, but the discovery of the connecting link which shall complete the chain of evidence against them. The deepest laid plot, the most cunning scheme, contains a flaw which may be fatal to their operations, to their liberty, and even their life, a flaw which no amount of previous examination may detect, a weakness which can rarely be adequately guarded against. Justice and the vindication of the law, therefore, depend largely on a proper regard being paid to minor occurrences, which at first sight would seem to have no bearing whatever on the particular case under consideration. The history of crime contains numberless instances where the criminal has been brought to justice through one or other of these causes--the presence of particular hairs or threads on his clothing or on the weapon used, the direction of certain cuts on the body of his victim, the possession of trifling articles. At other times dreams have played no inconsiderable part in the vindication of the law, which has also been aided by supernatural visitants, or by the self-consciousness of the criminal.

It would be impossible in a short article like the present to offer a full list of cases of this description, but a few typical instances may be taken with the object of showing how crimes, long hidden, have been discovered in the most remarkable manner. Probably the best example occurred at Augsburg, in 1821. A woman named Maria Anna Holzmann lived in a house in the town belonging to one Sticht. Her means only permitted her to occupy a few of the rooms, and the remaining parts of the premises were let to lodgers, among whom were George Rauschmaier and Joseph Steiner. On Good Friday, April 20th, Holzmann disappeared. She had not given notice of her intended departure, and nothing was known of it until some days later when Rauschmaier and Steiner also left the premises, saying that their landlady had previously quitted the house, leaving them in possession of her keys. This information, however, was not given to the police until May 17th. In the meantime Holzmann's relatives had become apprehensive of her safety, and being reluctantly forced to the conclusion that foul play had befallen her, they decided to take an inventory of her property, as it was known that, although in humble circ.u.mstances, the woman had managed by care and economy to ama.s.s considerable wealth. It was found, however, that the greater part of her money and other valuables were missing.

In spite of active enquiries no further action of importance in the matter was possible until the following January, when Theresa Belter, a washerwoman who also lived in the house, announced that she had found a thigh of a human body hidden in the loft. Further investigations revealed a leg and the other thigh in a heap of rubbish in a corner of the room, and between the chimney and the roof, a trunk without head or limbs was discovered. An old gown and a petticoat, identified as portions of the dress of Holzmann, were also brought to light, while search in Rauschmaier's room disclosed other parts of a woman's body. The head was missing, but when news of the unmistakeable crime was noised abroad, a neighbouring manufacturer stated that during the preceding year he had found a skull, still bearing portions of flesh and hair, in his factory weir, but had not considered the "find" worthy of preservation.

There could be no doubt that Maria Anna Holzmann had been murdered, and the whole machinery of the law was put in motion to bring the criminals to justice. Suspicion fastened itself strongly upon the two men, Rauschmaier and Steiner, but actual evidence against them, or indeed against anyone, was of the scantiest description until the separate pieces of the woman's body were placed together. While the left arm was being examined, a bra.s.s ring fell out of the bend of the elbow, whence it had evidently slipped from the finger of the murderer. Whose was the ring? then became the all important question. Rauschmaier was arrested and confessed that he had stolen and p.a.w.ned several articles of Holzmann's property, but he sternly denied having committed the murder. The property, including a pair of ear-rings, had been recovered from the p.a.w.nbroker's, and these, with the bra.s.s ring, were laid before the accused. He had not wit enough to discern the trap laid for him, and immediately on seeing the ornaments, he exclaimed "The ear-rings and the gold and bra.s.s rings are mine. The bra.s.s ring I always wore until within four or five weeks after Easter, since when I have worn gold ones. The bra.s.s ring fits the little finger of my left hand; it slips on and off with ease." This foolish statement, and the place of the discovery of the ring, proved conclusively that Rauschmaier was the murderer of the unfortunate Holzmann. Subsequently he made full confession of the crime, stating that the bra.s.s ring must have slipped off while he was cutting up the body. He paid the penalty of his sins with death.

The "Greenacre" case, which occurred in 1836, was similar to the foregoing in many of its details. In that year, portions of the mutilated trunk of an old woman named Brown were found in a house in Edgeware Road, wrapped in old rags and sacking. Subsequently the head was discovered in Regent's Ca.n.a.l, and the limbs in a drain in the neighbourhood of Camberwell.

Comparison between the various portions left no doubt as to the ident.i.ty of the deceased, and James Greenacre, whom Brown intended to marry, and to whose house she had gone with all her property, was accused of the murder.

A woman named Gale with whom he lived was also charged with complicity in the deed. Once more suspicion, however strong, was insufficient to bring the crime right home to the accused, but the discovery, among Greenacre's property, of some rags corresponding with the pieces covering the mutilated remains, together with a few articles belonging to Brown, turned suspicion into actual proof. Greenacre was condemned to death, and his companion sentenced to transportation for life.

The murder of William Begbie, at Edinburgh, is a remarkable case of the manner in which the author of a crime may remain long hidden, and only then be discovered by accident. Begbie was a bank porter, and on November 30th, 1806, he was employed to carry a parcel of notes, worth about 4,000, to one of the bank's customers. On his way he had to pa.s.s through a narrow, dark, and tortuous entry, and there he was brutally murdered and the notes were stolen. Although a knife, of a particular pattern, was left in the body, the murderer remained at large, and no clue to the terrible crime could be unearthed. Nine months later the bundle of notes, untouched, was found hidden in a wall, but long years pa.s.sed before the mystery was completely solved. In 1822 a Bow Street runner named Denovan, while visiting Leith, chanced to fall into conversation with a sailor lately returned from captivity among the French. Speaking of old times the mariner accidentally mentioned that coming ash.o.r.e one morning he had noticed a man like William Begbie, followed by a person dressed in black and of respectable demeanour. He lost sight of them for a few moments, but later on he was surprised to see the man in black rush out of the narrow entry with a bundle under his arm. On the next day he heard of the murder, and feeling confidant that he could throw light on the crime, he informed the mate of his vessel of what he had seen. Permission to go ash.o.r.e was, however, refused. The vessel sailed, was captured by the French, and the sailor witness did not recover his liberty for fifteen years. Denovan set to work with this important clue, and enquiries proved that the man in black was no other than a notorious criminal named Mackoul, who had lived in Edinburgh in 1806. The law had claimed its own, however, previous to the sailor's disclosures. In 1820 Mackoul had suffered death for robbery; still, though he was beyond punishment for his old crime in Edinburgh, it was satisfactory to know that the mystery of the bank porter's death had at last been solved.

Probably the most notorious case in English annals of murder discovered by extraordinary means is that of the killing of Daniel Clarke by Eugene Aram. The main facts of the case are so well known that it is scarcely necessary to enter into them here. Aram, a.s.sisted by a man named Houseman, it may be remembered, murdered Clarke for the sake of his wealth, and hid the body in St Robert's cave, near Knaresborough. There it remained from 1745 till 1759, when it was accidentally discovered by a labourer. Close examination led to the conclusion that the body, or rather the skeleton, was that of a murdered man, and when the mysterious and almost forgotten disappearance of Clarke was remembered, steps were taken to arrest his quondam companions Aram and Houseman. The latter turned king's evidence, and on his testimony Aram was executed, leaving a shady memory to be invested with undeserved romance by a poet and a novelist of the following century.

Researches into modern criminal records also reveal a number of interesting cases similar to those cited above. A few years ago a Pole named Lipski was convicted in London of the murder of a woman. Strenuous efforts were made to obtain a pardon, on the ground that he had been wrongly convicted, but the solitary fact on which the Home Secretary decided to allow the law to take its course was that the door of the room had been locked in which the woman was found murdered, with Lipski himself hiding under the bed. And in tracing the Muswell Hill murder to its authors, the police were aided in their endeavours by the discovery of a common lantern which had been left on the scene of the crime. It was supposed to belong to a relative of one of the suspected men, and in order to verify this important link in the chain of evidence, a youthful agent of the detective force was employed to spin his top in front of the supposed owner's house, engage him in conversation if possible, and obtain evidence of the ownership of the lantern. The result was completely satisfactory; the suspicions of the police were confirmed, and the murderers brought to justice, mainly, it may be said, through the lantern's silent testimony.

Another case of murder, which occurred in 1806, was brought home in a singular and complete manner. A Deptford gentleman, named Blight, was killed by a pistol-shot, and Sir Astley Cooper, from an examination of the victim's wounds and of the place of his murder, arrived at the opinion that none other than a left-handed man could have committed the crime.

Acting on this conclusion the police arrested one Patch, who had been seen in the locality. When Patch was asked to hold up his hand to plead the indictment, he put up his left hand. The jury brought in a verdict of guilty, and before execution the criminal made full confession of his terrible deed.

Dreams also have played no inconsiderable part in the discovery of crime.

We have not s.p.a.ce in the present article to notice all trials where dream-evidence has been offered to the court; a brief notice of those cases in which it has had an important bearing must suffice. The most notorious instance, of course, is that of Maria Martin, the victim of the Red Barn tragedy. After her departure from home, in order, as was supposed, to many William Corder, nothing, either by way of letters, or otherwise, was heard of her, except brief mention in Corder's communications. Nearly twelve months pa.s.sed, when Mrs. Martin was startled and horrified by dreaming, on three successive nights, that Maria had been murdered and buried in the Red Barn. After much persuasion her husband and son consented to search the place, and there, in the exact spot indicated by Mrs. Martin as having been pointed out in her dreams, was found the body of her missing daughter, buried under the flooring in a sack.

Mention may also be made of the case of Ulick Maguire, an Irish farmer, whose wife dreamed that her husband had been murdered by a disappointed lover of hers, named O'Flanagan. A few days later an idiot boy, who lived in the house, was heard shrieking in terror: "Sha.n.u.s dhu more O'Flanagan (big black James) has kilt Ulick, and buried him under the new ditch at the back of the garden. I dhramed it last night, evry wurrd av it." The singular coincidence of the lad's dream with her own excited Mrs.

Maguire's suspicions to the utmost, especially as her husband was away from home at the time. She ordered a search at the particular spot mentioned by the idiot boy, and there, to her horror, was found the body of Ulick, with the skull cleft in twain. Immediate request was made for "big black James." He had absconded and enlisted in the army, but on being charged with the crime he admitted his guilt, and suffered the penalty of death.

In one instance, by far the most wonderful of its kind, the victim of a murder has appeared in successive dreams, and played the part of detective with admirable skill and effectiveness. A Grub Street victualler, named Stockton, was murdered towards the close of the seventeenth century. Three men were suspected of the crime, but neither of them could be discovered, and the affair seemed likely to become one of the mysteries of crime, when a Mrs. Greenwood dreamed that Stockton, who had been a neighbour during life, had taken her to a house in Thomas Street, telling her that his murderer was inside. On going to the house in person Mrs. Greenwood was told that Maynard, one of the suspected men, had gone abroad. The following night Stockton appeared and showed her the features of Maynard, and gave her such particulars of the man's habits and resorts that he was captured within a few hours. From Maynard the names of his partners in guilt, Bevel and Marsh, were obtained, but again the authorities were at fault, until Stockton indicated the house where Marsh visited, and the yard (afterwards discovered to be the yard of Marshalsea Prison) in which Bevel would be found. From a crowd of other prisoners Mrs. Greenwood identified Bevel, and shortly afterwards, through her strange testimony, Marsh also was arrested. Then, as an old chronicle of the case affirms, Stockton appeared for the last time, and thanked her for her good offices.

We have given the story as it has come down through two centuries; a whole body of clergymen attested its accuracy at the time, and present-day enquirers would have great difficulty, we imagine, in conclusively proving that the murder of Stockton was traced by other and less extraordinary means.

Closely allied to the evidence furnished by dreams, and indeed, as in the foregoing case of Stockton, sometimes barely distinguishable from it, is that offered by ghosts, actually seen by witnesses in a waking, but hallucinatory, state. Such evidence would scarcely be admissable in modern courts of law, but in past ages it was freely employed, and has served to bring criminals to the gallows. It must be admitted that the other testimony against the accused was strong, but in numerous instances ghosts have been instrumental in putting the officials on to a clue or track which they would most likely never have discovered by their own unaided efforts. In his "History of Durham," Surtees mentions the case of Anne Walker, who lived in 1630, and had become engaged in an intrigue with a relative of the same name. The girl was placed for a time under the care of a friend in a neighbouring village, but one night she was removed from there by Walker and a man named Sharp. From that date no one saw her alive. A fortnight afterwards, Graime, a fuller, was terrified by the appearance in his mill of Anne Walker's ghost, "dishevelled, blood-stained, and with five wounds in her head." She told him the whole story of her murder; how Sharp had killed her with a collier's pick, and then thrown her body down a shaft. Graime hesitated to use this strangely acquired information. Apparently incensed at his delay, Anne Walker repeatedly appeared, and in order to rid himself of these visitations, the frightened fuller at length acquainted the authorities with his story.

Immediate enquiry confirmed his statements in every particular. Walker and Sharp were arrested, charged with the murder of the girl, found guilty, and executed, though to the last they maintained their innocence of the crime.

A case, somewhat similar, has occurred even in the present century, and in matter-of-fact, new world Australia, where visions might be expected to be few and far between. The friends of a well-to-do settler near Sydney were surprised to hear from his steward that he had been suddenly called to England on important legal business. Remembering the vast wealth of the man, and the necessity for precautions in regard to it, they accepted the statement, and also recognised the steward's control of the estate during his master's absence. What was the astonishment, however, of one of these friends, when on riding over the estate he saw the owner, whom he thought to be in England, sitting on a neighbouring stile? The figure looked at him silently and sorrowfully, then walked towards a pond and disappeared.

Drags were procured and the water searched, when the body of the absent owner was brought to the surface. Confronted with the corpse the steward confessed that he had murdered his master at the identical stile on which the ghost had sat.

Pierre le Loyer, a French writer on law and the supernatural, mentions in his "Discours des Spectres," the case of a man who mysteriously vanished, having, as was supposed, been murdered. A few weeks later the ghost of the absentee appeared to his brother, took him to a lonely spot, and there pointed out where he had been murdered and buried by his own wife and her lover. Enraged at this domestic perfidy and wickedness the brother denounced his sister-in-law, and on his testimony she was condemned to be strangled and her body afterwards burned.

About half a century ago a peculiar case of fraud was disclosed by remarkable means during the hearing of a law-suit in Tuscany. The decision of the court turned on the point whether a certain word had been erased from a particular doc.u.ment of importance. Chemical processes were alleged to have been employed, and acting on scientific knowledge one of the lawyers proposed that the doc.u.ment should be heated, as thereby a slight difference of shade or colouring between the paper and the letters supposed to have been removed might become visible. Permission was given to try the experiment, and on the application of heat the important word in question immediately appeared, and the court gave a verdict in accordance with this ingeniously devised testimony.

Since that time the progress and development of science have enabled criminal investigation to be conducted by methods which would otherwise be impossible, and with almost unerring certainty and decision. The microscope and the spectroscope have been employed in numerous cases of murder and forgery where less subtle means of discovery would have proved useless; chemical a.n.a.lysis has become an important agent of detection, while photography has also rendered signal service in the cause of justice. We may not have concerned ourselves with the numerous methods by which bank-note forgeries are detected; hitherto our references have been mainly to the more serious crime of murder, and with a few instances of this character brought to light through modern science our list must close.

Although, generally speaking, the microscope cannot discern any difference between the blood of man and that of other mammalia, yet the merest examination suffices to show the difference between mammalian blood and that of birds, reptiles, or fishes. In the one case the red blood corpuscles are round, and without a nucleus; in the other they are oval and nucleated. On this fact the evidence for a prisoner at Chelmsford charged with murder was completely reb.u.t.ted. Blood stains had been found on his clothes, which, according to his counsel, had been caused by chicken's blood. But the prosecution brought forward a microscopist, who stated that the blood stains were mammalian, and on this testimony the plea of the prisoner was rejected. In the following year, and at the same a.s.sizes, the testimony against a man charged with murder was strengthened by the microscopical discovery of cotton fibres on a certain weapon, which he was said to have used, while the murderers of a man who had been kicked to death were convicted on the evidence of two doctors, who found on the boots of the accused a number of hairs corresponding with the hair on the head of the victim. Evidence of this kind is becoming of extreme importance. Hardly a serious crime is investigated without the application of one or other of these scientific methods of detection, and with each success the career of the criminal becomes increasingly difficult and arduous, and his chances of success more remote. Of remarkable discoveries of crime the microscope, the camera, and the spectroscope furnish the most subtle instances, and it is quite possible that before long other methods of investigation, founded on the most recent scientific achievements, will also be brought into operation. The phonograph and the Rontgen rays are only waiting their turn to serve in the cause of justice.

Post-Mortem Trials.

BY GEORGE NEILSON.

It might be thought that a man's death made an end of him, and that his mere body had no rights or duties except that of getting decently buried.

The middle age had other ideas. The dead still had status and duties.

Continental laws recognised acts of renunciation in which a widow laid the keys on her husband's corpse, or tapped his grave with the point of a halberd. The body of a murdered person, or, it might be his hand merely, might be carried before the judge to demand vengeance.[18] By English thirteenth century law[19] legal possession of real estate was thought to remain in a man, not until he died, but until his body was borne forth to burial. The dead might be a very potent witness, as shewn by the ordeal of bier-right,[20] a practice founded on the belief that the murderer's touch would cause the victim's wounds to bleed afresh. Thus variously qualified to act as witness or prosecutor as occasion required, it is not surprising to find the dead as defendant also.

English history[21] remembers the strange scene enacted in the monastery of Caen in 1087, when William the Conqueror lay dead there, and the ceremonials of his interment were interrupted by a weird appeal. Ascelin, the son of Arthur, loudly claimed as his, neither sold nor given, the land on which the church stood, and, forbidding the burial, he appealed to the dead to do him justice. More than one[22] old English poem turned its plot round the ancient canon law, by which a burial might be delayed for debt.

The dead was arrestable: a law afterwards set aside, "for death dissolved all things." But in more codes than one death did not dissolve liability for the consequences of high treason.

In Scotland,[23] in the year 1320, at the "black parliament" of Scone, several Scotsmen were convicted of conspiracy against King Robert the Bruce. Most of them were drawn, hanged, and beheaded. But a Scottish historian of the time tells us that Roger of Mowbray, one of the accused, having died before his trial, "his body was carried to the place, convicted of conspiracy, and condemned to be drawn by horses, hung on the gallows, and beheaded." It is to the credit of Bruce that he did not allow the corporal part of the sentence to be carried out, although many entries in the charter rolls[24] shew that the consequent escheats of the traitor's lands served to reward the loyalty of others. His body convicted of conspiracy! How came this singular procedure into Scottish practice?

In England, towards the close of the fourteenth century, although escheats were not less keenly looked after than in Scotland--and that sometimes in cases[25] where men had died unconvicted,--the purpose of attainder appears to have been effected without the expedient of calling the dead to the bar. The dead, however, was convicted. In the case of Robert Plesyngton,[26] for instance, in 1397, the judgment of Parliament bore an express conviction of treason, "_noun-obstant la mort de dit Roberd_." In 1400, John, Earl of Salisbury, challenged for treason by Lord Morley, was killed before the day appointed for the duel. The court not only adjudged him a traitor,[27] but on grounds eked out by Roman law subjected his sureties in costs to his accuser--said costs including the handsome fee of 100s. and twelve yards of scarlet cloth to the lawyer Adam of Usk.[28]

In all features save perhaps that of the actual presence of the body in the trial, warrant can be found for the Scottish practice in Roman law.

The offence of "majesty," or high treason, formed an exception to the great humane general rule that responsibility for crime ended with the criminal's breath. Under the Lex Julia[29] death was no defence to a charge of "majesty;" proceedings could be raised to stamp the dead man's name with the brand of treason; his kinsmen might if they chose deny and defend; but if they failed to clear him his goods were confiscated and his memory d.a.m.ned. There is in the annals of Rome at least one instance[30] of a death-sentence of this sort p.r.o.nounced after the accused was in his grave. Nor was its scope confined absolutely to high treason. The Church had a quiet way of appropriating t.i.t-bits of barbaric policy for pious uses. The Emperor Theodosius[31] said that the inquisition for heresy ought to extend to death itself; and as in the crime of majesty, so in cases of heresy, it should be lawful to accuse the memory of the dead. The Popes endorsed the a.n.a.logy,[32] for heretics had goods, which sometimes were worth forfeiting. The spiritual authority however was of more moment.

The Church claimed the power to bind and loose even after death,[33] and a Welsh twelfth century bishop did not stand alone when he carried it so far as to scourge the body of a king who had died excommunicate.[34] On the same principle dead heretics--dead before sentence of heresy--were burnt.[35]

It was by a close following up of Roman jurisprudence, with, peradventure, some added light from the law and practice of the Church, that the French devised their _proces au cadavre_,[36] by which the memory of a dead traitor was attacked. Its special application was to lesemajesty described as divine and human, the former an elastic term covering offences against G.o.d and religion. Allied to this latter category, though not exactly of it, was the mortal sin of suicide. Self-slaughter was so deeply abhorrent to mediaeval thought as not only to be reckoned more culpable, but to call for more shameful punishment, than almost any other crime. So coupling the traitor and the self-slayer in the same detestation, the law a.s.sailed both by the same strange post-mortem process, and (by methods of reasoning which Voltaire was one of the first to ridicule) consigned their souls to perdition, their memories to infamy, and their bodies to the gibbet.[37]

The treatment of the suicide was peculiar in its refinements of symbolic shame. The body was, by the customary law (for example, of Beaumont[38]), to be drawn to the gibbet as cruelly as possible, _pour monstrer l'experience aux aultres_. The very door-step of the house in which he lay was to be torn up, for the dead man was not worthy to pa.s.s over it.

Impalement, transfixture by a stake, though well enough known on the continent as a punishment of the living, became there and in England alike, the special doom of the suicide. Yet the _proces au cadavre_ had no footing in English law, and although it was already in 1320 received in Scotland, we shall find reason for thinking it not wholly welcome.

After the trial in 1320 before alluded to, the records in Scotland are silent for over two centuries, and it is not until 1540 that the process is heard of again. In that year[39] the heirs of one Robert Leslie were summoned to the court of parliament to hear his name and memory "delete and extinct," for certain points and crimes of lesemajesty, and his lands and goods forfeited to the king. Legal authorities,[40] obviously forgetful of the fourteenth century instance, follow one another in the mistake of regarding Leslie's as the first of its kind. The legality of the procedure was called in question at the time. Indeed, so loud was the murmur that it can still be heard in the act pa.s.sed to put it to silence.

"It is murmurit," says the enactment, "that it is ane noveltie to rais summondis and move sic ane actioun aganis ane persoun that is deide, howbeit the commoun law directly providis the samin."[41] The three estates of parliament therefore on the motion of the lord advocate, declared unanimously "all in ane voce, but[42] variance or discrepance,"

that the cause was just and conform to common law. In another case of the following year[43] the charge and judgment were enrolled in the Acts of Parliament. The widow and the heir of the late James Colville were summoned "to see and hear that the said deceased James, whilst he lived had committed the crime of lesemajesty." The deliverance of parliament as tribunal was by its terms an actual sentence upon the dead--that the deceased James "hes incurrit the panis of crime of lesemajeste" for which causes the court decerned "the memoure of the said umquhile James to be deleit," and his possessions confiscated to the crown.

Parliament which had unanimously voted the procedure well based in law, found that it was dangerous. It was necessary to restrict its scope. In 1542, it is on parliamentary record[44] that "the lordis thinkis the said act [_i.e._, of 1540], ower generale and prejudiciale to all the barions of this realme." This would never do:--an act prejudicial to the barons!

So it became statute law in 1542, that it should apply only to cases of grave treason, public and notorious during the offender's life, and that prosecution for the future must be raised within five years after the traitor's death. It was a reasonable restraint, not always observed.

During the reigns of Mary and James VI. a number of trials occurred in which this singular process was resorted to, and in some, if not all, of which the body of the dead appeared at the bar. Occasionally it was embalmed for the purpose.[45] It had been a part of the border code, prevalent on the marches of England and Scotland, that an accused should, although dead, be brought to the place of judgment in person. In 1249, the marchmen of both realms had declared the law in that sense. They said that, in any plea touching life and limb, if the defendant died the body of him should be carried to the march on the day and to the place fixed between the parties, because--concludes this remarkable provision[46]--"no man can excuse himself by death." And in the end of the sixteenth century the borderers had not forgotten the tradition their forefathers had inherited in the thirteenth, for in 1597, when Scotsmen and Englishmen were in fulfilment of their treaty obligations presenting their promised pledges, the custom was scrupulously observed on the English side. All were there,--all, though all included one that was no more.[47] "Thoughe one of the nomber were dead, yet was he brought and presented at this place." They evidently believed on the borders, which Sir Robert Cary with some reason called[48] an "uncristned c.u.n.try," that a man could best prove that he was dead by attendance in person.

In trials for treason this principle was pushed in some instances to strange extremes. Probably one underlying reason of this, at a date so late, was to make sure that no formality should be lacking to make the forfeiture effective. But the main reason one must believe lay in its being a traditional observance. In the trial in 1600, of the Earl of Gowrie and his brother for an alleged attempt on the king's life, the privy council on the preamble[49] that it was necessary to have their corpses kept and preserved unburied, issued an act to that effect, and the treasurer's accounts contain an entry "for transporting of the corpis of Gowrie and his brother." Their bodies were accordingly produced at the trial, and the sentence which p.r.o.nounced them guilty of treason and lesemajesty during their lifetime, declared[50] their name, memory, and dignity extinguished, and ordained that "the dead bodeis of the saidis Treatouris," should be hanged, quartered, and gibbetted. Their "twa hedis," a grim diarist[51] tells, were set upon the tolbooth, "thair to stand quhill[52] the wind blaw thame away."

The last case[53] in the annals, in which this revolting Scottish "practick" was put into effect, occurred in 1609. Robert Logan, of Restalrig, had been nearly three years in his grave when it was given out that he had been a party to the alleged Gowrie conspiracy against King James. A process[54] was at once taken in hand to proscribe his memory and escheat his property. As death was no excuse, neither was burial; and the ghastly form was gone through of exhuming the bones for presentation at the trial. It was a case plainly within the exception provided for in the act of 1542, for the man was not "notourly" a traitor, he had died in repute of loyalty: but the Crown was eager for a conviction. Much incredulity had been rife with regard to the Gowrie conspiracy. The evidences now adduced were--on the surface at any rate, although, perhaps, as many critics still think, on the surface only,--circ.u.mstantial and strong. The prosecution was therefore keenly pressed, and the reluctance of some of the judges overcome. A jocular jurist-commentator on these post-mortem trials, has remarked[55] that the bones of a traitor could neither plead defences, nor cross-question witnesses. But in the dawn of the seventeenth century they could turn the sympathy of the court against the charge, as it appears they did in Logan's case. The proofs, however, looked overwhelming, and the forfeiture was carried without a dissenting voice from the bench--from the bench, because it was, as all Scots treason-trials then were, a trial by judges only, not by judge and jury.

Logan's memory was declared extinct and abolished, and his possessions forfeited. The judgment, however, wreaked no vengeance on the exhumed remains. Humanity was a.s.serting itself even in the trial of the dead, and that inst.i.tution itself was doomed. Although in disuse ever after, it did not disappear from the theory of law until 1708, when the act 7 Anne, chapter 21, prescribing jury-trial for treason, a.s.similated the Scots law on the subject to that of England, and thus brought to an unregretted end one of the most gruesome of legal traditions.

Island Laws.

BY c.u.mING WALTERS.

A very curious and interesting phase of self-government is that which is supplied by the independent legal system established in various small islands in the United Kingdom. It is amusing to notice these little communities on rocky islets tenaciously preserving their ancient privileges, and revelling in the knowledge that they have a code of their own by no means in harmony with the statute law of the country of which they are an insignificant part. The tribunals and the legal processes in the Channel Islands, in the Scilly Islands, in the Isle of Man, and even in some of the smaller islands round the English coast, differ entirely from those established in the motherland; and any suggestion of change is warmly resented. In many cases it has not, of course, been worth while to insist on reform, inasmuch as the islands are inhabited only by a few families, who may be left in peace to settle their own differences if any occur.