The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• A Historical Sketch of Liberty and Equality As Ideals of English Political Philosophy From the Time of Hobbes to the Time of Coleridge 1 .
• ( a ): Liberty
• ( B ): Equality.
• The Law of Real Property 1
• The Laws of Wales.—the Kindred and the Blood Feud 1 .
• The Criminal Liability of the Hundred 1 .
• Mr Herbert Spencer’s Theory of Society 1 .
• I.: The Ideal State.
• II.: The Law of Equal Liberty.
• The Early History of Malice Aforethought 1
• The Seisin of Chattels 1 .
• The Mystery of Seisin 1 .
• The Deacon and the Jewess; Or, Apostasy At Common Law 1 .
• The Beatitude of Seisin 1
• The Suitors of the County Court 1
• The Shallows and Silences of Real Life 1
• Why the History of English Law Is Not Written 1

THE DEACON AND THE JEWESS; OR, APOSTASY AT COMMON LAW1 .

In the year 1222, Archbishop Stephen Langton held at Oxford a provincial council, and of this council one result was that a deacon was burnt, burnt because he had turned Jew for the love of a Jewess.

I propose here to set in order the scattered evidence that we have for this story. This, so far as I am aware, has not yet been done, and it seems worth doing. The story became famous, for the passage in which Bracton made mention of it became the main, almost the only, authority for holding that, without help from any statute, English law can burn a heretic or, at least, an apostate. We have indeed no warrant for saying that from the death of this deacon until the death of Sautre in 1400 (whether Sautre was burnt under the statute of that year or under the common law, must not here be asked), no one in England was burnt for heresy, but we may say with some confidence that during this long period, near two hundred years, if English orthodoxy had a victim, there is no known record of his fate2 .

Now for just so much of the tale as is told above we have testimony ample in quantity and excellent in quality. But I have purposely used a loose phrase:—the apostate’s death was a “result” of the council. If we strive to be more precise and ask by what authority he was committed to the flames, who passed, who executed the sentence, we have before us a problem difficult but interesting. Not only in course of time did the solid tragic fact attract to itself some floating waifs of legend and miracle, but even our best witnesses have not been so careful of their words as doubtless they would have been had they known that they were writing for an ignorant nineteenth century. We must collate their testimonies, mark what they say, also what they do not say. So doing we shall be drawn into noticing another story about a man and a woman who were immured (whatever “immured” may mean), and this story also deserves being brought to light, for it is very curious.

That the council was held is quite certain. The scene and time we can fix exactly. The scene was Oxford, or, to be more particular, the conventual church of Osney1 . The day is variously described, the day on which one reads in the gospel, “I am the good Shepherd,” the day on which one sings in the introit, “The earth is full of the mercy of the Lord”; but all descriptions come to this, it was the 17th of April, and the Second Sunday after Easter, in the year 1222. The canons which the council published we have2 . Naturally enough, being general ordinances, they say nothing of the deacon; but there are two of them which claim brief attention.

It was ordained that no beneficed clerk, or clerk in holy orders, should take any part whatever in the judicial shedding of blood1 . This, even if it stood by itself, would assure us that no sentence of death was pronounced by the council. It may be that this canon was habitually disobeyed, or obeyed only according to its very letter. At this time, and for many years afterwards, the regular judges in our King’s Court (to say nothing of abbots and even bishops sent out as justices in eyre) were for the more part ecclesiastics, and the judicial bench was often a step to the episcopal throne. But this seems to have been a scandal to churchmen of the straiter sort, and it would be quite one thing for this or that ordained clerk to hold pleas of the Crown, leaving to some lay associate the actual uttering of the fatal suspendatur, quite another for an ecclesiastical council to break while in the very act of publishing a law for the church2 .

Also the council had something to say about the mingling of Jews with Christians, something which suggests, what indeed seems the truth, that at this time the Jews in England, despite the exactions of their royal protector, and despite occasional outbursts of popular fury, were a prosperous thriving race. Jews are not to have Christian servants, it being contrary to reason that the sons of the free woman should serve the sons of the bond1 . Again, there being unfortunately no sufficiently visible distinction between Jews and Christians, there have been mixed marriages or less permanent unions; for the better prevention whereof, it is ordained, that every Jew shall wear on the front of his dress tablets or patches of cloth four inches long by two inches wide, of some colour other than that of the rest of his garment2 . We might guess that the council was moved to this decree by the then recent and shameful crime of the apostate deacon. But there is no need for any such supposition, for in this and in most of its ordinances the Oxford Council was but endorsing and re-enforcing the acts of a still more august assembly, the Fourth Lateran Council held by Pope Innocent the Third in the year 1215.

The Lateran Council had prohibited the clergy from taking part in judgment of blood3 , also it had ordained that Jews and Saracens should wear some distinctive garb4 , lest under cover of a mistake there should be an unholy union of those whom God had put asunder. But this was but bye-work; the suppression of flagrant heresy had been the main matter in hand. Of heresy England indeed had known little, almost nothing. It is true that in 1166 some heretics, Publicani or the like, had been condemned by an ecclesiastical council (this council also was held at Oxford), had been handed over to the secular power, and then by the king’s command whipt, branded, and exiled; some of them, it seems, perished very miserably of cold and hunger1 . But even these were foreigners, Germans, and the writer who tells us most about them boasts that though Britain was disgraced by the birth of Pelagius, England, since it had become England, had been unpolluted by false doctrine. He boasts also, and apparently with truth, that well-timed severity had been successful2 . Only one other case is recorded, and of this we know next to nothing. In 1210 an Albigensian was burnt in London; we are told just this and no more3 . It must not surprise us therefore if English law had no wellsettled procedure for cases of heresy; there had been no heretics. But of course it was otherwise elsewhere. When the Lateran Council met the Albigensian war had been raging for some years, and it had been a serious question whether a considerable tract of France would not be permanently lost to the Catholic Church. So one great object of the council was to impress upon all princes and potentates the sacred duty of extirpating heretics. A definite method of dealing with them was ordained4 . They were to be condemned by the ecclesiastical powers in the presence of the secular powers or their bailiffs (saecularibus potestatibus praesentibus aut eorum baillivis) and delivered to due punishment, clerks being first deprived of their orders. Also it was decreed that if the temporal lord, when required and admonished by the church, neglected to purge his land of heresy, he should be excommunicated by the metropolitan and the other bishops of the province. If then for the space of a year he should still be contumacious, that was to be signified to the Pope, who would thereupon discharge his subjects from their allegiance. It was from taking part in such legislation as this that the English bishops had but lately returned when they met at Oxford. The council at Oxford, having recited and republished the Lateran canons, can have had little doubt as to how it ought to deal with a deacon who had turned Jew.

It will hardly be a digression, and indeed may lead us to the right point of view, if we notice that this same Lateran Council made (or if the word made be objectionable, then let us say caused) a great change in English criminal law. It abolished the ordeal, or rather it made the ordeal impossible by forbidding the clergy to take part in the ceremony1 ; no more remained for the council of the English king (the king himself was yet a boy) than to find some substitute for a procedure which was no longer practicable2 . We may respect the motives which urged Blackstone to protest that no change in English law could be made by a body of prelates assembled at Rome3 ; but we shall scarcely understand the history of the time unless we understand that the exclusive power of the church to rule things spiritual,—and the ordeal, the judgment of God, was a thing spiritual,—was unquestioned. It may be difficult now to grasp the old theory of Church and State, the theory of the two swords; a distinction between things spiritual and things temporal may seem to us vain and impossible; still we must reverence facts, and the theories of a time are among its most important facts. Our own doctrine of sovereignty, our modern definitions of law, are out of place if we apply them to the middle ages. They will bring us but to some such unprofitable conclusion as that there were no sovereigns, no political communities, no law, nothing but “dormant anarchy.”

Though it may delay us from our story, there is yet one question which should be asked and answered before we can fully comprehend the evidence that is to come before us. Who at Oxford in the year 1222 was the natural and proper representative of temporal power, who was the manus laicalis? Doubtless the sheriff of Oxfordshire. Now it happened that the sheriff of Oxfordshire was one of the most notable men in England; more than king in England (“plusquam rex in Anglia”) some said1 . He was Fawkes of Breauté, just at the full height of his power, a man not unlikely to act in a high-handed imperious way without much regard for forms and precedents, a man who very likely was already plotting revolt and civil war, a man somewhat given to disseising and otherwise pillaging the clergy, and therefore, it may be, not unwilling to do the church a service if that service would cost him nothing. He was soon to find that the church could be a terrible enemy, that of all his foes Langton was the most resolute.

These things premised, we may call the witnesses, and first of all Bracton, not that his testimony is the earliest but because it is perhaps the best and certainly the best known. A lawyer writing for lawyers, he would be likely to see the case in its legal bearings and to speak of it carefully. We cannot assign any very precise date to his evidence, and he may well have given it between thirty and forty years after the event. Still it is from round about the year 1222, the year of the Oxford Council, that he collected the great mass of his case law. That was the great time when there were great judges whose judgments were worthy of record. Of their successors, his own contemporaries, he seems for some reason or another to have thought but meanly. It was to the examination of old judgments, as he himself expressly says, that he had given his mind1 . He is speaking then, if not of his own time, yet of a time that he has studied. He has been telling us that a clerk convicted of crime is to be degraded by the Court Christian2 . He is to undergo no further punishment, degradation is punishment enough, “unless indeed he is convicted of apostasy, for then he is to be first degraded and then burnt by the lay power (per manum laicalem), as happened at the Oxford Council holden by Stephen Archbishop of Canterbury of happy memory, touching a deacon who apostatised for a Jewess, and who, when he had been degraded by the bishop, was at once (statim) delivered to the fire by the lay power.” Two things we remark. In the first place there is no talk of any sentence of death being pronounced by any court, temporal or spiritual; the miscreant was burnt at once, on the spot, so soon as he has been degraded: there is no talk even of any royal writ. Secondly, the case is good law; it is a precedent to be followed when occasion shall require.

But Bracton does not stand alone. If he did, we should perhaps have some cause for doubting his testimony. It was an age very fertile of chroniclers and annalists, and there are some dozen books in which we may hope to find a trustworthy and early, if not quite contemporary, account of an event which took place in 1222, an event which, though neither very marvellous nor of first-rate importance, was still picturesque and unprecedented. Some of these books are silent. The silence most to be regretted is that of Roger of Wendover. We would gladly have had an account from one so careful and so well informed. But he is taken up with more momentous matters, the loss of Damietta and a serious riot in London, not suppressed without the aid of Fawkes and his soldiery. Beyond this he tells of nothing but terrible tempests. And, indeed, the weather this year was abominably bad; about this all our authorities are agreed. It is the only fact that the annalist of Margan in Glamorgan found worthy of remark. The annals of Burton, of Worcester, and of Bermondsey do not even mention the council; those of Winchester and Tewkesbury tell us that the council was held, but tell us no more. The annals of Osney, to which we look hopefully, say merely that the council was held, and held at Osney. But all this silence cannot, I believe, be reckoned as negative evidence. The monastic annalist, working with no definite plan, with no consistent measure for the greatness of events, jotted down what might interest his house or had struck his fancy, making sometimes what seems to us a very capricious selection of facts. He could pass by the fate of the perverted deacon, but he could also pass by very many things which, tried by any test, were much better worth recording.

But from the Cistercian house of Waverley in Surrey we have this1 :—“In this council an apostate deacon who had married (duxerat) a Jewess was degraded and afterwards burnt. Also a countryman (rusticus) who had crucified himself was immured for ever.” A somewhat longer version comes from Dunstable2 , and it seems to be the version of one who likely enough was an eye-witness, Prior Richard Morins, who was describing events as they happened year by year3 . He had certainly been at the Lateran Council4 , and I suppose that it was his duty to be at the Oxford Council also. He must have been a careful man of business, for these Dunstable Annals are a long detailed record of litigation and legal transactions described in technical legal language. What he says is this:—“In this council there was condemned to the flames, after his degradation, a deacon who for the love of a Jewess had been circumcised; and he was burnt with fire outside the town by the king’s bailiffs who were present on the spot (ibidem praesentes). There also another deacon was degraded for theft. Also a woman who gave herself out to be Saint Mary and a youth who had given himself out to be Christ and had pierced his own hands, side and feet, were immured at Banbury.” The prior certainly says that the pervert was condemned to the flames in (not by) the council. Could we now draw his attention to these words he would, I think, say (after a grumble about hypercriticism) that of course the council did not in so many words pronounce a sentence of death, but would add that it did what was for practical purposes the same thing, it convicted the man of apostasy and handed him over to the secular power; he might add, too, that no one for whom he wrote would have imagined that a judicium sanguinis was uttered by this assembly of ecclesiastics. Of any temporal court he says nothing, and nothing of any royal writ, but the king’s bailiffs were present on the spot, as required by the Lateran Council, and they burned the convict.

The account which comes to us from the Abbey of Coggeshall in Essex is yet fuller1 . It is contained in a very valuable chronicle, and in all probability was written within some five years after the event. Archbishop Stephen held a council at Oxford, and there “degraded an apostate deacon, who for the love of a Jewess had circumcised himself. When he had been degraded he was burnt by the servants of the lord Fawkes. And there was brought thither into the council an unbelieving youth along with two women, whom the archdeacon of the district accused of the most criminal unbelief, namely that the youth would not enter a church nor be present at the blessed sacraments, nor obey the injunctions of the Catholic Father, but had suffered himself to be crucified, and still bearing in his body the marks of the wounds had been pleased to have himself called Jesus by the aforesaid women. And one of the women, an old woman, was accused of having long been given to incantations and having by her magic arts brought the aforesaid youth to this height of madness. So both being convicted of this gross crime, were condemned to be imprisoned between two walls until they died (jussi sunt inter duos muros incarcerari quousque deficerent). But the other woman, who was the youth’s sister, was let go free, for she had revealed the impious deed.” We notice the appearance of Fawkes of Breauté, or rather of his underlings, remembering however that the ministri domini Falconis would also be the ballivi domini Regis mentioned by the Prior of Dunstable. We notice also that here there is no sentence of death, no royal writ.

Of about equal value and of about even date must be the account which, according to Dr Stubbs, comes from some nameless canon of Barnwell, the account which is preserved in the Memoriale of Walter of Coventry1 . “A priest and a deacon were there degraded inside the church before the council by the lord of Canterbury, the priest for homicide, the deacon for sacrilege and theft. But another deacon had sinned enormously; he had renounced the Christian faith; blaspheming and apostatising, he had caused himself to be circumcised in imitation of the Jewish rite. He was degraded by the lord of Canterbury outside the church and before the people. Relinquished by the clergy, he was as a layman and captured apostate delivered over to be condemned by the judgment of the lay court, and being at once (statim) delivered to the flames he died a miserable death. In degrading the priest and the deacons, when the lord of Canterbury had stripped off the chasuble, or stole, or whatever it might be, by lifting it with the end of his pastoral staff, he made use of these words, ‘We deprive you of authority’ (Exautoramus te). There was brought into the council a layman who had allowed himself to be crucified, and the scarred traces of the wounds might be seen in his hands and feet and his pierced side and his head. There was brought also a woman who, rejecting her own name, had caused herself to be called Mary Mother of Christ. She had given out that she could celebrate mass, and this was manifested by some proofs which were found, for she had made a chalice and patten of wax for the purpose. On these two the council inflicted condign punishment, that enclosed within stone walls (muris lapideis inclusi) they should there end life.” One peculiarity of this life-like account is that it says nothing about the Jewess. But we have also to note the mention of the lay court, for of this we have hitherto heard nothing. The deacon was delivered over to be condemned by its judgment. These are the important words: “velut laicus et apostata captus traditur judicio curiae laicalis condemnandus.” Nevertheless we do not read that he was in fact condemned by or brought before any secular tribunal; on the contrary, he was forthwith committed to the flames.

I believe that I have now stated what may be called the first-rate evidence, and that it is far more than sufficient to establish the chief facts. It will not escape the reader’s notice that all these early accounts of the matter are very sober, strikingly sober when the nature of the story and its subsequent fate are considered. We come to witnesses of a somewhat less trustworthy kind. And first there is Matthew Paris, who died in 1259. Roger of Wendover, as already said, does not even mention the Oxford Council. When Paris was absorbing Wendover’s work into his own Chronica Majora, he inserted a notice of the Council and of the deacon’s death. A more elaborate tale he set forth in his Historia Minor or Historia Anglorum, and to this we will turn first since there he cites his authority, and this authority an eye-witness, one Master John of Basingstoke, Archdeacon of London1 . Of any such Archdeacon of London nothing is said elsewhere, but a John of Basingstoke was Archdeacon of Leicester2 . Paris seemingly knew him well, and doubtless he is the person meant. He was a friend of Simon de Montfort and died in 1252. Paris, on the occasion of his death, speaks of him as a very learned man3 . He had been to Greece and had learnt Greek, had learnt it from a young Greek girl of whose wonderful accomplishments he had strange things to tell; she could foresee eclipses, pestilences and even earthquakes, and had taught the archdeacon all that he knew. Perhaps while seated at her feet the archdeacon not only learnt but forgot; perhaps as a traveller he acquired a habit of telling good stories. At any rate the story that he told to Paris was this:—“An English deacon loved a Jewess with unlawful love, and ardently desired her embraces, ‘I will do what you ask’ said she ‘if you will turn apostate, be circumcised and hold fast the Jewish faith.’ When he had done what she bade him he gained her unlawful love. But this could not long be concealed, and was reported to Stephen of Canterbury. Before him the deacon was accused; the evidence was consistent and weighty; he was convicted and then confessed all these matters, and that he had taken open part in a sacrifice which the Jews made of a crucified boy. And when it was seen that the deacon was circumcised, and that no argument would bring him to his senses, he solemnly apostatised before the archbishop and the assembled prelates in this manner:—a cross with the Crucified was brought before him and he defiled the cross1 , saying, ‘I renounce the new-fangled law and the comments of Jesus the false prophet,’ and he reviled and slandered Mary the mother of Jesus, and made a charge against her not to be repeated. Thereupon the archbishop, weeping bitterly at hearing such blasphemies, deprived him of his orders. And when he had been cast out of the church, Fawkes, who was ever swift to shed blood, at once carried him off and swore, ‘By the throat of God! I will cut the throat that uttered such words,’ and dragged him away to a secret spot and cut off his head. The poor wretch was born at Coventry. But the Jewess managed to escape, which grieved Fawkes, who said, ‘I am sorry that this fellow goes to hell alone.’”

Eye-witness and archdeacon though Master John of Basingstoke may have been, we cannot believe all that he said. In the first place, he will have the deacon’s head cut off, while all our best witnesses agree about the burning. In the second place, either the charge of crucifying a boy is just the mere “common form” charge against the Jews (the Jews were always crucifying boys, as every one knew, and were now and again slaughtered for it), or else the archdeacon has muddled up the history of the deacon with that of the labourer who was immured for crucifying himself. Nor does it seem likely that the assembled prelates gave the apostate an opportunity for manifesting his change of faith in a fashion at once very solemn and very gross. But what is said of Fawkes of Breauté does deserve consideration. Fawkes when this story was told was long since banished and dead, and it may well be that he had become a bugbear, a mythical monster to whom, under Satan, mischief of all sorts might properly be ascribed. But what mischief, what evil doing had there been? Why should a perfectly lawful execution be converted into a hurried and secret act of this cursing and bloodthirsty enemy of mankind, this Fawkes of Breauté, “ever swift to shed blood,” with imprecations about the throat of God? Certainly the impression left on the archdeacon’s mind seems to have been that of a deed which, though perhaps lawful, was indecently hasty.

What Paris says in his Chronica Majora1 is briefer, but it has a new marvel for us, and shows that we are already on treacherous ground. He introduces us to a hermaphrodite. A man has been apprehended who has in his hands, feet and side the five wounds of the crucifixion; he and an accomplice, a person utriusque sexus, scilicet, Ermofroditus, confess their offences and are punished by the judgment of the Church. “Likewise also a certain apostate, who being Christian had turned Jew, a deacon, he too was judicially punished (judicialiter punitus); and him Fawkes at once snatched away and caused to be hanged (quem Falco statim arreptum suspendi fecit).” The poor deacon who has been already burnt and beheaded is now hanged; this we may pass by, nor will we discuss the question how the old woman who called herself St Mary became a hermaphrodite, but we again notice that the slaying of the apostate is due to Fawkes, and seems a lawless or at least irregular act. Doubtless the Abbey in which Paris wrote was just the place in which stories discreditable to Fawkes would be readily believed and invented, and Paris himself seems to have cherished a bitter hatred for “the great enemy and despoiler of St Alban’s2 .” But again we have to ask, whether and why there was anything reprehensible in putting to death this degraded clerk, and, if not, why that evil principle, Fawkes of Breauté, should be invoked to account for what was perfectly natural and right?

Another ornate version is given by Thomas Wykes, who, it is believed, wrote near the end of the thirteenth century and in the monastery of Osney, the scene of the council1 . “In this council there was presented a deacon who, some time ago, had for the love of a Jewess rejected Christianity, apostatised, and been circumcised according to the Jewish rite. Being convicted of this he was first degraded, then condemned by a secular judgment (saeculari judicio condemnatus) and burnt by fire. It was said that this same apostate, in contempt of the Redeemer and of the Catholic faith, had even dared to throw away in an ignoble place (in loco ignobili) the Lord’s body which had been stolen from a church. A Jew revealed this, and in corroboration of the Christian faith the Lord’s body was found unpolluted, uncorrupted, in a fair vessel, prepared for it, as one may well believe, by angel hands. And there was brought into the same council a country fellow (rusticus) who had come to such a pitch of madness that, to the despite of the Crucified One, he had crucified himself, asserting that he was the Son of God and the Redeemer of the world. He was immured by the judgment of the Council, and shut up in prison he ended his life, fed on water and hard bread.” This is, I think, the first and only account which states that the deacon was condemned by a lay court, and I believe that it comes from too late a time to be trusted; the legend about the consecrated wafer shows that the story was already being improved by transmission.

There is not much more to be said. Later writers repeat with more or less accuracy what we have already read. Just one new ornament is added, and a pretty ornament too. Having learnt how the rusticus (such is the stereotyped description of the miserable man, and it well may mean that he was a villein) crucified himself, and how the deacon assisted at the crucifixion of a Christian boy, we may read in the pages of Holinshed and elsewhere how the council crucified a hermaphrodite, a version of the tale which good Protestants must think very proper and probable1 .

Such being the evidence, were I to venture a guess as to what really happened it would be this:—No one in England doubted for one moment that this deacon ought to be burnt, except, it may be, the deacon himself and his fellow Jews. It is not necessary here to assume that had his offence been mere heresy, his fate would have been the same, though I believe that of this there can be little doubt. But his crime was enormous, he had piled sin on sin. A deacon of the Christian Church he had turned Jew, turned Jew for love and for the love of a Jewess. Excommunication would have awaited the king, interdict the nation, if mere heresy had gone unpunished, and England had lately had some sad experience of interdicts. But in such a case as this no ecclesiastical threat would be needed; every one would agree that this self-made Jew must be burnt, that his death was demanded by all laws human and divine. It was the duty of the council to degrade him, to demand that he should be punished, to see that he was punished; but the council could not pronounce upon him any sentence beyond that of degradation. He was degraded then, not inside the church like the manslayer and the thief, but outside the church, before the people, and he was then handed over to the sheriff or his bailiffs. He was at once burnt; most of our witnesses bring out this fact that he was burnt at once and without any further formality. Possibly it was intended that there should be some further formality, some sentence pronounced by a lay tribunal; one of our best witnesses, the canon of Barnwell, seems to say as much, and the story about the indecorous haste of Fawkes points the same way. Possibly, then, Fawkes or his subordinates did act with unexpected promptitude; Fawkes, unless he is maligned, was not much given to waiting for orders. One writer at the end of the century says that the man was condemned by the lay court. I take this to prove that by that time, when the relation between Church and State had undergone some change, it was thought that there ought to be, assumed that there must have been some sentence by a lay tribunal, at least some writ from the king. But whatever was expected and omitted was but a bare formality, the registration by the king’s court of a foregone conclusion. By an informality the deacon gained a speedier release from a painful world. Any notion that he would have been saved had he been brought before the king’s justices we may dismiss as idle. Those justices, almost to a man, would have been ecclesiastics, and among laymen he would assuredly have fared no better. There was no statute, there may perhaps have been no precedent to the point; such a case is not foreseen in advance, and when it happens it is of course unprecedented; but that a deacon who turns Jew for the love of a Jewess shall be burnt, needed no proof whatever. Bracton, as I think, knew that there had been no judgment of any lay court (“qui cum esset per episcopum degradatus, statim fuit igni traditus per manum laicalem”), and he fully approved of what had been done and so far generalized the case as to state for law that an apostate clerk (a layman would have been in no better plight, but Bracton, as it happens, is discussing clerical privileges) is to be delivered to the lay power and burnt.

The fate of the man and woman who were immured, fanatics, lunatics, impostors, enthusiasts, or whatever they were, is really quite as remarkable as the fate of the deacon. The notion that for breach of monastic vows persons were sometimes bricked up in walls was once current and may still be entertained by some who take their Marmion too seriously. Scott indeed sanctioned it not only by verse but by a solemn prose note. Very possibly the main foundation of this notion is some version of the story that has here been before us, for I believe that this is almost all that is to be found about immuration in any English records or chronicles. We see plainly (and this might, I take it, be fully proved from foreign books) that our witnesses do not mean that two persons were suffocated in brick or stone. They were imprisoned for life and fed on bread and water. Doubtless the imprisonment was very close and strait, otherwise we should not have this same immuratus from writer after writer when incarceratus and imprisonatus lay ready to hand, and one writer says that they were enclosed between two walls, not between four; but still they were fed, though water and hard bread were their fare. But what most deserves attention is that they were sentenced to imprisonment, life-long imprisonment, by an ecclesiastical council, and that the sentence was carried out. What is more, they were lay folk. The sentence here was no judicium sanguinis, and by pronouncing it the council broke no canon of the Church. But what of the common law? At common law could the ecclesiastical court send a man to prison? This seems to me a vain question; every question about what was “the common law” is vain that does not specify some date. But suppose that the year 1222 be mentioned, then apparently our answer must be this:—In that year two persons were sent to imprisonment for life by the judgment of an ecclesiastical council, and, in the absence of evidence to the contrary, the natural presumption is that they were imprisoned lawfully.

[1]Law Quarterly Review, April, 1886.

[2]Report of Ecclesiastical Courts Commission, 1883, Historical Appendix, p. 52, a paper proceeding from the present Bishop of Chester.

[1]Annales Monastici (Osney), vol. IV., p. 62.

[2]Wilkins, Concilia, vol. I., p. 585.

[1]Cap. 9.

[2]See Grosstest’s protest against the appointment of the Abbot of Ramsey as a justice in eyre in 1236; Letters of Grossteste (ed. Luard), p. 105.

[1]Cap. 39.

[2]Cap. 40. It seems that this regulation was enforced by statute in 1275. See Flores Historiarum (“Matthew of Westminster”) for that year. In Statutes of the Realm (vol. I., p. 221) this appears as a statute of uncertain date.

[3]Cap. 18.

[4]Cap. 68.

[1]The original authorities seem to be Rad. de Diceto (ed. Stubbs), vol. I., p. 318; William of Newburgh (ed. Howlett), vol. I., p. 131; Mapes de Nugis Curialium (Camden Society), p. 63; Ralph of Coggeshall (ed. Stubbs), p. 122.

[2]Will. Newburgh, I. c.

[3]Libre de Antiquis Legibus (Camden Society), p. 3. As to these two cases see the paper by the Bishop of Chester referred to above.

[4]Cap. 3. This is Decretal. Gregor. lib. 5, tit. 7, cap. 13.

[1]Cap. 18.

[2]See the orders issued to the justices in eyre; Foedera, vol. I., p. 154. Among the justices were five bishops and one abbot.

[3]Comment., vol. IV., pp. 344–5.

[1]Ann. Monast. (Tewkesbury), vol. I., p. 64.

[1]Bracton, f. 1.

[2]Bracton, f. 123 b.

[1]Ann. Monast., vol. II., p. 296. Dr Luard (Preface, p. xxxi) regards this as a contemporary record of events.

[2]Ann. Monast., vol. III., p. 76.

[3]Dr Luard’s Preface, p. x.

[4]p. 44.

[1]Ralph of Coggeshall, p. 190.

[1]Historical Collections of Walter of Coventry. Preface by Dr Stubbs, vol. II., p. ix.

[1]Historia Anglorum (ed. Madden), vol. II., p. 254.

[2]See lists of Archdeacons of London and of Leicester in Hardy’s Le Neve.

[3]Chron. Maj., vol. v., p. 284.

[1]Et minxit super crucem.

[1]Vol. III., p. 71.

[2]Dr Luard’s Preface to vol. III., p. xii.

[1]Ann. Monast., vol. IV., p. 62. See Dr Luard’s Preface, pp. x-xv.

[1]Holinshed (ed. 1807), vol. II., p. 251. But the confusion is older; see Knighton (Twysden’s Scriptores), p. 2429: it must, I think, have originated in the clerical blunder of someone who wrote crucifixus instead of immuratus.