Superstitious Origin Of Some Of The English Laws
( Originally Published 1884 )
Bred up an Englishman, and under the protection of the English Laws, I have ever been taught to consider them superior to the laws of other nations, as being founded alike in wisdom and lenity, for either of which causes I have considered them entitled to respect and veneration. To persons acquainted with the laws of the ancients, as well as those of the present day, it is quite manifest that the wisest laws in all ages have been intermixed with others equally ridiculous and absurd ; I will not say absurd in their origin, but rendered so by time and circumstances ; for instance, a law imposing a tax upon an article of great consumption, is wise, so long as the consumption exists ; but when the consumption has ceased, either on account of the tax, or other circumstances, the continuance of the law is useless and absurd ; so likewise a law founded in superstition might have been well enough so long as the age of superstition lasted; but when the age of superstition has passed away (as in England I trust it has), the continuation of such a law is palpably ridiculous and absurd. From the above considerations, I have been frequently surprised that the law respecting forfeitures in cases of casual death, usually termed "deodands," so truly superstitious and absurd, and yet so frequently acted upon, should be allowed to form part of the laws of the present day. " It seems (says a learned writer on this subject) to have been originally founded rather in the superstition of an age of ignorance, than in the principles of sound reason and policy." That it was founded in the superstition of an age of ignorance, is quite certain; but that it was wanting of a political motive, is not, I think, quite so manifest, when we consider the purposes to which these forfeitures were applied. We may, I think, safely consider the law in question as having (in imitation perhaps of the Mosaic law*) been founded in the blind days of popish superstition, as an expiation for the souls of such as were snatched away by sudden death, in which I think the political motive is apparent, namely, for the purpose of enriching the revenues of the popish priests,
" Omnia quae movent ad mortem sunt Deo danda."
" What moves to death we understand,
Is forfeit as a Deodand."
The intention of the law seems to have been to create an abhorrence of murder (if we may so term it) by a forfeiture of the instrument or occasion of such death ; a law ridiculous enough in itself, but rendered still more so by the nice distinctions which have since, from time to time, been taken ; for instance, if a man by falling from the wheel of a cart standing still, be killed, the wheel alone is forfeited, as causing his death ; but if the same person, riding on the shafts of his cart, had fallen to the ground and broken his neck, the cart and horses were forfeited, and not the loading, which in no way contributed to his death ; but if, by the same fall, his death :had been occasioned by the cart passing over him, then the horses, cart, and loading, would have been forfeited, because the weight thereof made the hurt the greater.
Again, where a cart, in endeavouring to pass a loaded wagon, was overturned, and a person was thereby thrown out before the wheels of the wagon which passed over him, whereby he was killed, it was resolved that the cart, wagon, loading, and horses, were all forfeited, for that they did all move, to the man's death. Now really one is shocked to think, that, when so far advanced as the Nineteenth Century, such superstitious, trivial, and absurd questions should occupy the attention of our learned Judges; it is true, that in late years, whenever motions have been made on behalf of lords of franchises (to whom in most cases these forfeitures belong by grant), for the purpose of increasing the amount of Deodands, such motions have not met with great countenance in Westminster Hall. Added to the absurdity of the law, great hardship in most cases ensues, in consequence of the Jury measuring the amount of Deodand by the value of the animal or instrument causing the death, instead of fixing a nominal sum, by which the ends of the law would be fully answered. If, for instance, my servant is killed by my horse, in addition to the conscientious liability I am under of making some pro-vision for his family (if he has any), I am obliged to pay such a sum for the ransom of my horse, as a Jury of superstition (for the nature of their oaths makes them so) shall think fit to impose. I repeat that the existence of such a law at the present day, as the one in question, is of itself sufficient to lessen the respect and draw down the contempt of sensible men upon the whole body of our laws. If the Legislature do not consider the subject as worthy of their interference, the Juries, who are impannelled on such occasions, should at least show their contempt of it by the amount of the Deodands, which in no case (for all cases are in this respect alike) should exceed one farthing. The length to which Juries are disposed to carry this absurd law, is shown in the following case, which happened but the other day, wherein two children were killed by the explosion of some gunpowder. The accident was certainly a very lamentable one, and the Jury, as an expression of their abhorrence of it, imposed a Deodand of ten pounds upon the gunpowder ; but upon being informed by the Coroner, that, as the gunpowder had evaporated, there was nothing left whereon to levy, they withdrew the fine. After such an example, I think we cannot doubt but that a stop should be put to this absurd law.
Misletoe used in Churches.
Your correspondent, p. 337, who has resigned his old signature of "Robin Hood," is, as I apprehend, not quite correct in his notion that misletoe does not still adorn our churches at Christmas. It may not always be a concomitant with holly and ivy, but it seems to have been in general use when Gay published his " Trivia," who thus remarked;
"Now with bright holly all the temples strow With laurel green and sacred mistletoe."
Since his time I remember to have seen a large bough of this plant suspended under the arch of entrance into the chancel of a church within the Bills of Mortality. The under-written articles are copied from the Churchwardens' accounts of the same parish.