CHAPTER III.
LEX, REX, FEX.
Unexplained arrest, which would greatly astonish an Englishman nowadays,was then a very usual proceeding of the police. Recourse was had to it,notwithstanding the Habeas Corpus Act, up to George II.'s time,especially in such delicate cases as were provided for by _lettres decachet_ in France; and one of the accusations against which Walpole hadto defend himself was that he had caused or allowed Neuhoff to bearrested in that manner. The accusation was probably without foundation,for Neuhoff, King of Corsica, was put in prison by his creditors.
These silent captures of the person, very usual with the Holy Vaehme inGermany, were admitted by German custom, which rules one half of the oldEnglish laws, and recommended in certain cases by Norman custom, whichrules the other half. Justinian's chief of the palace police was called"_silentiarius imperialis_." The English magistrates who practised thecaptures in question relied upon numerous Norman texts:--_Canes latrant,sergentes silent. Sergenter agere, id est tacere_. They quotedLundulphus Sagax, paragraph 16: _Facit imperator silentium_. They quotedthe charter of King Philip in 1307: _Multos tenebimus bastonerios qui,obmutescentes, sergentare valeant_. They quoted the statutes of Henry I.of England, cap. 53: _Surge signo jussus. Taciturnior esto. Hoc est essein captione regis_. They took advantage especially of the followingdescription, held to form part of the ancient feudal franchises ofEngland:--"Sous les viscomtes sont les serjans de l'espee, lesquelsdoivent justicier vertueusement a l'espee tous ceux qui suient malvesescompagnies, gens diffamez d'aucuns crimes, et gens fuites etforbannis.... et les doivent si vigoureusement et discretementapprehender, que la bonne gent qui sont paisibles soient gardezpaisiblement et que les malfeteurs soient espoantes." To be thusarrested was to be seized "a le glaive de l'espee." (_Vetus ConsuetudoNormanniae_, MS. part I, sect. I, ch. 11.) The jurisconsults referredbesides "_in Charta Ludovici Hutum pro Normannis_, chapter _Servientesspathae_." _Servientes spathae_, in the gradual approach of base Latinto our idioms, became _sergentes spadae_.
These silent arrests were the contrary of the _Clameur de Haro_, andgave warning that it was advisable to hold one's tongue until such timeas light should be thrown upon certain matters still in the dark. Theysignified questions reserved, and showed in the operation of the policea certain amount of _raison d'etat_.
The legal term "private" was applied to arrests of this description. Itwas thus that Edward III., according to some chroniclers, causedMortimer to be seized in the bed of his mother, Isabella of France.This, again, we may take leave to doubt; for Mortimer sustained a siegein his town before being captured.
Warwick, the king-maker, delighted in practising this mode of "attachingpeople." Cromwell made use of it, especially in Connaught; and it waswith this precaution of silence that Trailie Arcklo, a relation of theEarl of Ormond, was arrested at Kilmacaugh.
These captures of the body by the mere motion of justice representedrather the _mandat de comparution_ than the warrant of arrest. Sometimesthey were but processes of inquiry, and even argued, by the silenceimposed upon all, a certain consideration for the person seized. For themass of the people, little versed as they were in the estimate of suchshades of difference, they had peculiar terrors.
It must not be forgotten that in 1705, and even much later, England wasfar from being what she is to-day. The general features of itsconstitution were confused and at times very oppressive. Daniel Defoe,who had himself had a taste of the pillory, characterizes the socialorder of England, somewhere in his writings, as the "iron hands of thelaw." There was not only the law; there was its arbitraryadministration. We have but to recall Steele, ejected from Parliament;Locke, driven from his chair; Hobbes and Gibbon, compelled to flight;Charles Churchill, Hume, and Priestley, persecuted; John Wilkes sent tothe Tower. The task would be a long one, were we to count over thevictims of the statute against seditious libel. The Inquisition had, tosome extent, spread its arrangements throughout Europe, and its policepractice was taken as a guide. A monstrous attempt against all rightswas possible in England. We have only to recall the _Gazetier Cuirasse_.In the midst of the eighteenth century, Louis XV. had writers, whoseworks displeased him, arrested in Piccadilly. It is true that George II.laid his hands on the Pretender in France, right in the middle of thehall at the opera. Those were two long arms--that of the King of Francereaching London; that of the King of England, Paris! Such was theliberty of the period.